THE EMPTY PROMISE OF THE FOURTH AMENDMENT IN THE FAMILY REGULATION SYSTEM.

• Author: Arons, Anna

ABSTRACT

Each year, state agents search the homes of hundreds of thousands of families across the United States under the auspices of the family regulation system. Through these searches--required elements of investigations into allegations of child maltreatment in virtually every jurisdiction--state agents invade the home, the most protected space in Fourth Amendment jurisprudence. Accordingly, federal courts agree that the Fourth Amendment's warrant requirement applies to family regulation home searches. But almost universally, the abstract recognition of Fourth Amendment protections runs up against a concrete expectation on the ground that state actors should have easy and expansive access to families homes. Legislatures mandate searches and loosen warrant requirements; executive agencies coerce consent from families and seek court orders that violate the Fourth Amendment; and the judiciary rubberstamps these efforts and fails to hold the executive and the legislative branches to their constitutional obligations. Families under investigation--who are almost all poor and are disproportionately Black, Latinx, and Native--are left with nowhere to retreat.

This Article argues that the casual home invasions of the family regulation system are not just another story of lawless state action carried out by rogue actors or of an adversarial system failing to function. Instead, this is a story of a problem-solving system functioning exactly as it was designed. The problem-solving model emphasizes informality, information gathering, and cooperation--values that sit uncomfortably with the individual rights-based principles underlying the Fourth Amendment. By uniting each branch of government in a project of surveillance, the problem-solving model reduces the potency of the separation of powers as a check on government overreach, while at the same time undercutting checks and balances outside the separation of powers. Protecting individual rights and preventing government overreach in the family regulation system will require more than rejecting the problem-solving model in favor of an adversarial model, as the criminal legal system shows. Guided by the heuristic of non-reformist reforms, the Article suggests a continuum of measures--some immediate, some over the course of generations--that will unravel the family regulation system's wide net of surveillance and safeguard the welfare of children in a holistic sense. Ultimately, we must fundamentally rethink "child welfare services " and move from a model that holds individuals responsible for large-scale societal problems to one that addresses those problems on a societal level.

TABLE OF CONTENTS INTRODUCTION I. HOME SEARCHES IN THE PROBLEM-SOLVING FAMILY REGULATION SYSTEM A. Surveilling Families and Searching Homes B. Pathologizing Marginalized Families C. The Problem-Solving Model of the Family Regulation System II. FOURTH AMENDMENT CONSTRAINTS ON HOME SEARCHES A. The Fourth Amendment as a Check on Government Powers 1. Separation of Powers and Checks and Balances in Criminal Law 2. Separation of Powers and the Fourth Amendment B. Fourth Amendment Constraints on Family Regulation Searches III. THE ABSENCE OF CHECKS IN A PROBLEM-SOLVING SYSTEM A. The Shared Project of Searching Families ' Homes 1. The Legislature 2. The Executive 3. The Judiciary B. The Failure of Separation of Powers to Check Home Searches C. The Absence of Outside Checks 1. Individual Rights Protections 2. Internal Separation of Functions 3. Public Oversight IV. FORTIFYING CHECKS AND FORTIFYING CHILD SAFETY A. Non-Reformist Reforms B. "Narrowing the Front Door" C. Empowering Parents in Court and Re-Inscribing the Judicial Role D. Supporting Today's Children and Today's Parents E. 'Supporting Tomorrow's Parents CONCLUSION INTRODUCTION

A father stands before a Kentucky family court judge. (1) The father, under investigation by Kentucky's family regulation agency, objects to caseworkers--state agents--entering his home without a search warrant and without his consent. The father argues that such a home search violates his Fourth Amendment rights. When he mentions the Fourth Amendment, the judge interrupts, admonishing, "When you are winning you need to keep your mouth shut. You're winning because I haven't taken the children from your home." (2) This is not the judge's first such comment. Earlier, he had warned, "If you don't cooperate, I can take the children out of the house-easy." (3) Now the judge continues, telling the father that the Fourth Amendment does not apply in this context and that he does not have a Fourth Amendment right not to cooperate with state caseworkers who demand entry into his home. (4)

The judge's statement of the law is wrong: the Sixth Circuit held seven years before this court appearance that "a social worker, like other state officers, is governed by the Fourth Amendment's warrant requirement." (5) With that, the Sixth Circuit joined a growing consensus among federal circuit courts in acknowledging that the warrant requirement applies to family regulation home searches and that it permits family regulation caseworkers to conduct searches only with a warrant, consent, or under a recognized warrant exception. (6) But in Kentucky, as in jurisdictions throughout the United States, well-settled principles of constitutional norms play virtually no role at the lowest court levels. (7) Here, those courts are the specialized state courts that preside over cases where the government alleges parents have neglected or abused their children. (States call these courts by different names; I refer to them here as "dependency courts.") (8) Each year, hundreds of thousands of parents across the country are subjected to home searches by state agents operating under the auspices of the family regulation system. (9) These searches may take place in the absence of court orders or, as in the Kentucky case, under the authority of court orders ("entry orders") that fail to meet the requirements of a valid search warrant. (10) Most searches stem from allegations of neglect, rather than abuse, and the vast majority of investigations are closed without substantiating any allegations of child maltreatment. (11) Unsurprisingly, the government's sprawling surveillance and search practices focus almost exclusively on poor families and, to an astonishingly disproportionate degree, on Black, Latinx, and Native families. (12)

This story of search practices in the family regulation system may sound familiar to those steeped in the enforcement of criminal law. There, too, the state disproportionately targets and punishes poor Black, Latinx, and Native people. (13) There, too, the law in practice bears little resemblance to law on the books. (14) And there, too, low-level governmental actors, be they police, prosecutors, or judges, are granted wide latitude with little oversight, leaving them free to create their own norms and rules. (15) Many have argued that the Fourth Amendment does little to protect individual rights in this world where police may avail themselves of any number of warrant exceptions, judges decide warrant applications in minutes and grant nearly all of them, and the remedy of suppression is granted vanishingly infrequently. (16) But the casual home invasions of the family regulation system should not be taken as just another example of lawless state action carried out by rogue actors. Instead, these Fourth Amendment violations are the natural outgrowth of the problem-solving model endemic to the family regulation system.

The "problem-solving" label has been tagged to any number of courts and adjudicative models. (17) use it here to refer to a system-wide orientation that purports to "rehabilitate" litigants rather than punish them. This model prizes informality, information-gathering, and collaboration while diminishing parents' substantive individual rights and their ability to assert those rights. (18) It expands judicial power by allowing judges to order investigations and encouraging them to pry into intimate details of families' lives in the name of "rehabilitating" them. (19) This model reaches beyond the courthouse door. Legislatures task executive agencies with conducting wide-ranging investigations that include home searches for even the most spurious allegations and ease requirements for court orders to facilitate searches. (20) Executive agencies, in carrying out these mandates, fall back on the expectations of cooperation and collaboration to extract consent from parents--and cast parents who object as safety risks to their own children. (21) In and out of court, the emphasis on informality and cooperation over formal adversarial proceedings serves to inflate executive power and to dim parents' chances for any judicial review, let alone meaningful judicial review. (22) All of this points to an uncomfortable truth: the problem-solving orientation of the family regulation system is fundamentally at odds with the Fourth Amendment.

The conflict between the Fourth Amendment and the problem-solving model comes into clearer focus if we imagine how a similar approach might play out in a criminal case. Say an anonymous person calls 911 to report that they saw Person X on the street holding a small baggie of a controlled substance. If police operated under a model analogous to that of the family regulation system, this report would trigger two statutory requirements for police: first, to investigate Person X, (23) and second, to search Person X's home--not just for a controlled substance but for anything anywhere in the home that might show Person X violated any laws. (24) If Person X refused police entry, then under state law, police could obtain a court order permitting them to enter and search the entire home for "cause shown." (25) If Person X moved to suppress any evidence gathered during this search on statutory or Fourth Amendment grounds, they would find that...