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Report on a Court Decision

Concerning CPS Abuses

On July 17, 2002, the U.S. 5th Circuit Court of Appeals clearly outlined the constitutional relationship between social workers and families. This decision is a great victory for family rights activists and will act as a bulwark against the future destruction of children's innocence at the hands of abusive and intrusive Child Protective Services (CPS) workers.        

The landmark case, Roe v. Texas Dept. of Protective and Regulatory Services, centered on the unconstitutional strip and body cavity search of one Jackie Roe, a six-year-old girl, by Barbara Strickland, a CPS case worker.  The basis for Strickland's search was information received from an anonymous hotline call, which led CPS to believe that the child might be suffering from sexual abuse.  Ms. Strickland then made contact with Jackie's mother and scheduled a meeting at the Roe household.  Strickland did not, however, inform Mrs. Roe of the purpose of the visit.

The next day, Strickland arrived at the house, gained entrance into the home, informed Mrs. Roe that she did not need an attorney, and demanded that she be allowed to take pictures of Jackie's private parts in order to determine if any abuse had occurred.  Mrs. Roe, although uncomfortable with the demands of Ms. Strickland, reacted passively, so Strickland proceeded. After taking the photographs, Strickland interviewed Jackie and then left.  The investigation was then dismissed, and no allegations of abuse were lodged by CPS.

The U.S. 5^th Circuit Court of Appeals held that Agent Strickland's actions (more reminiscent of a member of the Nazi SS than that of an American CPS worker) were inexcusable.  Nevertheless, the court granted Strickland qualified immunity because it was not clearly established at the time of the strip search (and thus Strickland could not have known) that the “special needs”* doctrine did not allow social workers to conduct warrantless strip searches of children. 

In response, the 5th Circuit stated:

Strickland ultimately fails to identify special need separate from the purposes of general law enforcement. Identifying the goal of protecting a child's welfare and removing him from the home is easy; disentangling that goal from general law enforcement purposes is difficult.  In Ferguson, the Court also faced a quite worthwhile goal -- preventing the obvious and severe health problems cocaine addiction caused to pregnant mothers and unborn infants.  The court could not, however, apply the special needs to such a program where law enforcement was so deeply involved.

The Court further stated:

Strickland argues that a visual body cavity search can often disprove sexual abuse allegations.  Perhaps.  But their necessity in some cases does not say anything about social workers need to perform warrantless searches in non-exigent {emergency} circumstances.  The social worker can take many preliminary steps short of visual body cavity searches, such as interviewing the child and the parents.  In non-exigent circumstances, the worker then has time to obtain a search warrant either personally to conduct a visual body cavity search or to have a physician perform it.  We conclude, therefore, that a social worker must demonstrate probable cause and obtain a court order, obtain parental consent, or act under exigent circumstances to justify the visual body cavity search of a juvenile.

For young Jackie, the only sexual abuse she experienced was at the hands of a CPS agent. The court felt it had to grant Strickland qualified immunity because the law surrounding the special needs doctrine was not clearly defined at the time of her actions. Thankfully, the 5th Circuit remedied this oversight in its decision.  In future cases involving warrantless searches, CPS workers within the 5th Circuit will be considered equal to law enforcement officials in the eyes of the law.  Quoting Ferguson, the 5th Circuit stated, “Other societal objectives cannot justify a program that would systematically collect information for the police.”

What Parents Should Learn from the Roe Decision

        •   The court clarified that a parent does not have to submit to the warrantless search of his child’s body.                                      

        •  The CPS worker has been defined as a law enforcement official and in non-emergency circumstances is held to the same restrictions as a police officer.

        •  Even though the courts have stated that passivity does not necessarily translate into consent, parents should boldly (but politely) stand up for the Constitutional rights of their families and their children.

* As summarized by the 5^th Circuit, the “special needs” doctrine states that “Public officials can justify warrantless searches with reference to a ‘special need’ ‘divorced from the State’s general interest in law enforcement.’”  Examples of this doctrine include a principal’s search of a student’s purse for drugs in school, a public employer’s search of an employee’s desk, and drug testing of U.S. Customs Service employees applying for positions involving drug interdiction.  It was Strickland’s position that her warrantless search could be justified under this special needs test.

The information in this article is not intended to be legal advice.

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