Storming the castle to save the children: the ironic costs of a child welfare exception to the Fourth Amendment.

• Author: Coleman, Doriane Lambelet

INTRODUCTION I. THE PREVAILING APPROACH TO MALTREATMENT INVESTIGATIONS A. Defining the Cases for Investigation B. The Nature and Scope of the Investigation Itself C. The Impact of the Prevailing Approach to Investigations II. THE DOCTRINAL VALIDITY OF THE STATES' RELIANCE ON A CHILD WELFARE EXCEPTION TO THE FOURTH AMENDMENT A. The Amendment's Presumptive Protections B. The Traditional Consent and Exigent Circumstances Exceptions C. The Special Needs "Administrative Search" Exception D. Reasonableness as the Ultimate Measure of Fourth Amendment Constitutionality III. REJECTING A CHILD WELFARE EXCEPTION ON THE BASIS OF FUNDAMENTAL FOURTH AMENDMENT PRINCIPLES A. The View from History B. Individual Interests C. The Government's Needs D. A Final Accounting CONCLUSION INTRODUCTION

Six-year-old Jackie Doe dances suggestively in the bathroom at camp, laughing as she touches herself and another girl in private places. Concerned that Jackie's behavior indicates a premature sexual awareness, her counselor reports the incident to the child abuse hotline. Child Protective Services (CPS) assigns a caseworker to investigate the possibility that Jackie has been sexually abused. Under state law, sexual abuse is both a crime and a basis to remove the child from the custody of her parents.

At the door of the Doe family home, the caseworker explains to Jackie's mother that she needs to come in, look around, and see the child. At first, her mother refuses to allow the caseworker in, but the caseworker insists. When Jackie's mother wonders if she should call a lawyer, the caseworker tells her there is no need to consult with anyone. Jackie's mother reluctantly accedes. The caseworker says that she needs to take pictures of Jackie's body. Her mother, visibly shaken, again expresses discomfort, but the caseworker tells her "Oh, don't worry. It's more stressful for the parent than it is the child." And so Jackie's mother helps Jackie to take off her clothes. The caseworker asks Jackie to lie down on the bed and spread her legs. Despite having no training in this specialized work, she then "[takes] pictures of Jackie's vagina and buttocks in a closed position, and then instruct[s] [her mother] to spread Jackie's labia and buttocks, so that she [can] take pictures of the genital and anal areas." (1) For months afterwards, both Jackie and her mother suffer from nightmares, anxiety, and depression.

Finding no basis to substantiate its concern that the child may have been abused, the state closes its case file. Jackie's mother files suit alleging violations of her and her daughter's Fourth and Fourteenth Amendment privacy rights. In that context, the caseworker's supervisor allows that "she would not have taken the pictures but opine[s] that the decision to do so lay within [the caseworker's] discretion." (2)

This story is both recent and true. Child welfare investigations tend to involve strip searches or genital examinations only when the state suspects that a child has been the victim of serious physical or sexual abuse; however, even mundane abuse and neglect reports investigated by officials acting in good faith can result in deeply intrusive state action that touches upon aspects of privacy that the culture and law typically have considered fundamental. State officials, including caseworkers and the police, annually conduct about 2 million such investigations which generally involve entry into and search of the family home, and interviews with and physical examinations of the children whose welfare is in question. In many cases the latter occur during school hours, so that parents do not know about them and are unable to interfere. And, states formally rely upon their officials' ability to conduct investigations unfettered by procedures designed to safeguard the privacy of the family so they can exercise the maximum discretion possible in this process. Specifically, although such investigations seek evidence that could support both a criminal and civil charge, and touch upon the Fourth Amendment's most hallowed ground--the personal residence and the person herself--states generally pursue their approach as though there is a child abuse exception to the Fourth Amendment's presumptive requirements of a particularized warrant and probable cause. (3)

The premise underlying this approach to the child maltreatment problem is that privileging family and individual privacy risks enormous damage to children who might be the victims of abuse or neglect. Indeed, some have argued (including myself in a different context) that it is precisely a strong cultural and legal concept of privacy that allows maltreatment of vulnerable family members to occur. (4) As applied to child welfare programs, this argument suggests that where the government is unable to investigate reports of the possibility that children are at risk, some children will continue to suffer and even to die at the hands of their abusive parents and guardians. A child welfare exception to the Fourth Amendment's presumptive requirements is believed to be essential to protect these children.

Perhaps because many states agree with these arguments, their practices have gone largely unimpeded by the courts: The United States Supreme Court has yet to decide a case involving the constitutionality of child maltreatment investigations, and in particular, the Fourth Amendment's applicability to those investigations. Moreover, no state supreme court has addressed this issue in a straightforward manner. The lower courts, including the federal circuits and state appellate courts, only recently have begun to hear relevant cases in large enough numbers to provide a sense of how the issue is percolating. Notably, while all of the federal circuits agree that the Fourth Amendment applies to state maltreatment investigations, they are split on the essential question whether it requires a particularized warrant and probable cause, (5) or merely some version of the administrative or "special needs" exception to the traditional warrant preference. (6) Depending on how liberally it is applied, the special needs standard is effectively the child welfare exception to the Fourth Amendment that states seek to perpetuate, as it may permit warrantless intrusions on the basis of no, mere, or reasonable suspicion.

The profound irony of this approach is that, in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help. In 2002, for example, the states conducted approximately 1.8 million investigations concerning the welfare of nearly 3.2 million children. Only about 896,000, or twenty-eight percent, of these children were ultimately found to be victims of abuse or neglect. (7) Seventy-one percent, or roughly 2.3 million children were thus subjected to state mandated "thorough" investigations involving at a minimum interviews, examinations, and]or home visits, in circumstances where the state in the end could not show that the children were unsafe and in need of rescue. (8) Investigating these children is consistent with the states' highly precautionary strategy to remedy the nation's maltreatment problem. However, from the perspective of the investigated child, the process is not so clearly meritorious. Indeed, despite the authorities' best intentions, the process can be harmful in two related ways. First, the investigations undermine the fundamental values of privacy, dignity, personal security, and mobility that are protected by the Fourth Amendment. It is critical in this regard that the Fourth Amendment uniquely has been interpreted to recognize the child's own individual interest in these values, by guarding her right also to be free from unreasonable searches and seizures both inside and outside the family home. (9) Second, as the introductory illustration intimates, depending upon the child and the nature of the investigation, the process can cause emotional and psychological damage ranging from temporary discomfort to significant long-term harm. (10)

If this strategy were a particularly effective tool in the battle against child maltreatment, it might be more defensible. However, even its proponents concede that because abuse and neglect are underreported, many more victims exist than are known to the system. (11) And they surmise that the investigations that do take place sometimes, or even often, fail to discover adequate evidence of maltreatment in cases where children are in fact truly victims. (12) Meanwhile, states largely ignore alternative approaches that could enhance the success of their efforts. For example, states could do more to increase societal awareness of the need to report child abuse with relevant particularity, especially in localities and among populations known to be reluctant to do so. (13) They could work to reconcile the current conflict among experts about how to define abuse and neglect, to eliminate definitions that are so broad they give officials on the ground unfettered discretion to define maltreatment, (14) and to make sure that the definitions that remain include real instances of maltreatment that society currently prefers to ignore. (15) Perhaps most importantly, they could do what is necessary to hire, train, and retain officials to work in the field who are given an appropriately sized caseload, sufficient support, and clear guidelines to reduce the extent of their discretion, so that they can do their jobs with due care and precision, and with respect both for the privacy of the family and for the health and safety of all of the children who are subject to their programs and procedures. (16) These alternative strategies are not cheap and in some respects they are also conceptually and politically complicated. Reforming the reporting requirements to demand more of the citizenry and adopting more precise maltreatment definitions are...