09-1454 & 09-1478

In The Supreme Court of the United States
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BOB CAMRETA, Petitioner, v. SARAH GREENE, personally and as next friend for S.G., a minor and K.G., a minor, Respondents.
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JAMES ALFORD, Deschutes Sheriff, Deschutes County, Oregon, v. SARAH GREENE, et al., Respondents.
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On Writ of Certiorari To The United States Court Of Appeals For The Ninth Circuit
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!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!" NIVEEN ISMAIL 119 Promontory Dr W Newport Beach, CA 92660 951-452-1734

Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 5 ARGUMENT I. The Ninth Circuit Correctly Decided That The Instant Case Was A Seizure Under The Fourth Amendment And Petitioners Have Not Challenged That Ruling . . . . . . . . . . . . . . . . . . . . . . .9 II. The Ninth Circuit Correctly Decided That The Reasonableness Standard Was Inapplicable Here Because The Interrogation Was Part Of A Criminal Investigation . . . . . . . . . . . . . . . . . . . . . . .11 III. The Seizure Of S.G. Was Not Reasonable Under Terry Or Any Other Fourth Amendment Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 IV. Only A Brief Interview Is Appropriate Under Terry And Brevity Is Essential When Dealing With Children Due To The Inherent Unreliability Of Children’s Statements And The Ability Of The Interviewer To Contaminate The Results Thereby Increasing The Risk Of Error In Dependent Child Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 V. There Are No Special Needs In Child Neglect And Abuse Investigations That Outweigh The Private Interests At Stake . . . . . . . . . . . . . . . . . . . 20 VI. Real Life Horror Stories Of CPS Involvement Cautions Against Granting CPS Any Additional Power To Create Probable Cause . . . . . . . . . . . . . .24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 i


TABLE OF AUTHORITIES US Supreme Court Cases Page

Davis v. Mississippi, 394 U.S. 721 (1969) . . . . . . . 9 DeShaney v. Winnebago County, 489 U.S. 189 . . . 35 Eaton v. Price, 364 U.S. 263 (1960) . . . . . . . . . . . . 21 Ferguson v. City of Charleston, 532 U.S. 67 (2001) 20 New Jersey v. T.L.O., 469 U.S. 325 . . . . . . . . . 5, 6, 14 Oklahoma Press Pub. Co. v. Walling, 327 U.S.186 21 Santosky v. Kramer, 455 U.S. 745 (1982) . 1, 2, 17-18 Terry v. Ohio, 392 U. S. 1, 16-19 (1968). 5, 7, 9, 12-14 United States v. Brignoni-Ponce, 422 US 873 . . 9, 13 United States v. Drayton, 536 U.S. 194, 201 (2002). 9 Federal Cases Doe v. Heck, 327 F.3d 492, 509 (7th Cir.2003) . . . . 20 Doe v. State of La., 2 F. 3d 1412 (1993) . . . . . . . . . 30 Dubbs v. Head Start, Inc., 336 F.3d 1194 (2003) . . 20 Jones v. Hunt, 410 F.3d 1221, 1228 (10th Cir. 2005) . . . . . . . . . . . . . . . . . 6, 10, 12, 14 Morris v. Dearborne, 181 F. 3d 657 (1999) . . . . 28-29 Snell v. Tunnell, 920 F.2d 673, 698 (1990) . . . . . . 12 Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 1999). . 32 Walsh v. Erie County Dept. of Job and Family Serv., 240 F. Supp. 2d 731, (ND Ohio 2003) . . . . . . . . 34


California Supreme Court Cases In re Lucero L. (2000) 22 Cal. 4th 1277 . . . . . . .14, 15 California Cases Deanna Fogarty-Hardwick vs. County of Orange (No. G039045), 2010 Cal. App. Unpub (Cal.App. 4 Dist. Jun 14, 2010) . . . . 16, 19, 26-28 In re Claudia E. (2008) 163 Cal.App.4th 627, 637. 27 Other Authorities Lee & Thue, 13 U.C. Davis J. Juv. L. & Pol'y “Unpacking the Package Theory: Why California's Statutory Scheme for Terminating Parental Rights in Dependent Child Proceedings Violates the Due Process Rights of Parents as Defined by the United States Supreme Court in Santosky v. Kramer.” . . . . . . . . . . . . . . . . . . . . . 18 Should We Believe the People Who Believe the Children? The Need for a New Sexual Abuse Tender Years Hearsay Exception Statute (Winter 1995) 32 Harv. J. on Legis. [207] . . . . . 14 The Administration on Children, Youth and Families (ACYF): Child Maltreatment 2009, available at: m09.pdf#page=31 . . . . . . . . . . . . . . . . . . . . . . . . 3 Child Welfare League of America, available at: m..................................... 3 iii

Child Maltreatment in Foster Care: A Study of Retrospective, available at: ld_maltreatment_and_juvenile_delinquency.pdf 4 Foster care too often fails to keep kids safe, available at: m..................................... 4 A Critical Look At The Foster Care System: How Widespread a Problem? available at: . . . . 4 National Coalition for Child Protection Reform: False Allegations: What the Data Really Show, available at: . . . 19 Assessing the Costs of False Allegations of Child Abuse: A Prescriptive, available at: . . . . 32


INTEREST OF AMICUS CURIAE1 Amicus curiae, Niveen Ismail, is a private concerned citizen and a resident of Orange County, California, who has personal first hand experience with Child Protective Services (CPS) and the juvenile court system. Proceeding in pro per, she petitioned this Court in May 2009 for review. Docket No. 0810723. The main question presented was whether California’s dependency laws terminating parental rights under a preponderance of the evidence conflicted with this Court’s holdings in Santosky v. Kramer, 455 U.S. 745 (1982). This Court requested a response on August 27, 2009, and denied cert on November 2, 2009. This amicus curiae also has a civil rights lawsuit asserting claims for intentional torts and violations of state and federal civil rights against the social services agency pending in the Central District Court of California. No claims of Fourth Amendment constitutional rights violations were made against the social services agency in the aforementioned case, therefore this amicus curiae does not have a financial or other interest in the outcome of this case except the preservation of the constitutional rights of the citizens of this great nation as envisioned by its founders, and most especially the rights of families to be free from unreasonable governmental interference in their affairs.
1 This brief is filed with the consent of all the parties. Letters of consent are on file with the Clerk of this Court. No counsel for any party has authored this brief in whole or in part, and no person or entity other than the amicus curiae has made any monetary contribution to the preparation or submission of this brief.


In addition to her own experiences with CPS and the juvenile court system in California, this amicus curiae has participated in several forums, discussion groups and activist groups related to dependency proceedings and family rights advocacy nationwide, and has read hundreds of dependency cases, published as well as unpublished, and a large number of opinions by Circuit Courts of Appeal and District Courts, relating to civil rights violations stemming from child neglect and abuse allegations, as well as numerous opinions by this Court regarding the First and Fourteenth Amendment rights. This amicus curiae brief is submitted in support of an affirmance of the opinion below. This brief is necessary because it presents a realistic viewpoint of dependency proceedings and interactions with social services and law enforcement officers during these proceedings. This brief is also necessary to highlight a major error in the Children’s Advocacy Institute’s (CAI) amicus curiae brief, which states that: “At this stage, this Court must find by a now-heightened burden of “clear and convincing evidence” that the parents are “unfit” and termination is appropriate. Santosky v. Kramer, 45 U.S. 745 (1982).” Id. at 18. However, as explained earlier, California does not adhere to Santosky, supra, and it is the state courts, not this Court, that determine whether parental rights will be permanently extinguished or not. The CAI, which is based in San Diego, California, monitors “California and federal standards affecting children” Id. at 1, but 2

nevertheless misstates the law as it applies to California. Petitioners and amici curiae in support of Petitioners, paint a pure and noble viewpoint of the government’s interest in the protection of the children, and an abysmal picture of the role of parents in the protection of their children. Poverty is never discussed as a possible reason for the majority of these detentions, which could in fact be resolved with adequate services, but never are. Defensive social work and federal adoption bonuses create an incentive to place children into adoption instead of reuniting families.2 In fact, in 2009, the national rate of victimization was 0.93 per 100 children, of which 78.3% were the result of general neglect or child endangerment, while 17.8% were due to physical abuse and only 9.5% were due to sexual abuse.3 Further, none of the amici point out to the Court that the incident of child abuse is actually
Federal and State grants generally reimburse CPS for foster care and for adoptions but provide little financial incentives for aiding and reunifying families or placing children with relatives. Further, the Adoption and Safe Families Act (ASFA) contains several provisions focusing on moving children more expeditiously to permanency. Those provisions include new timelines for moving children to permanency; modification of the "reasonable efforts" standards required of state programs to specify that the child's safety and health is "paramount" to other concerns when deciding the placement of a child; and the creation of adoption incentive bonuses to states that increased the number of adoption from the foster care system; see, e.g.,
2 3 The Administration on Children, Youth and Families (ACYF): Child Maltreatment 2009, available at: 31.


greater in foster and institutional care than in the general population. The estimated rate of victimization in foster care ranged from 4.4 to 2.7 per 100 children.4 This is to be expected, because social workers have a tendency to protect and defend foster families, and as a result there may be a tendency to relax the supervision of these families. Further, it stands to reason that the lack of a biological relationship between foster children and their foster families, including other foster children in the home, would tend to increase the likelihood of sexual abuse in foster and group homes. This amicus curiae brief also seeks to dispel the myths behind Child Protective Services, otherwise known to many parents as Child Parent Separators, (CPS) and the adequacy of the juvenile courts in protecting the due process rights of parents, and therefore emphasizes the heightened need for greater protections against Fourth Amendment rights violations, while the parent and his/her child still have these rights which were intended to protect against the unnecessary invasion of privacy and the
Child Maltreatment in Foster Care: A Study of Retrospective, ent_and_juvenile_delinquency.pdf at page 7; see also Foster care too often fails to keep kids safe, available at:; see also A Critical Look At The Foster Care System: How Widespread a Problem? (12.5% of Arizona’s foster care population have been sexually abused while in state care; a 1992 study in Maryland showed that sexual abuse in foster care was four times higher than the general population; the ACLU's Children's Rights Project similarly estimates that a child in the care of the state is ten times more likely to be abused than one in the care of his parents) available at


equally unnecessary destruction of families once a dependency petition is sustained and the family becomes vulnerable to inadequate due process protections, as demonstrated by this case, where a Fourth Amendment Rights Violation permits social worker, Camreta, to commit an even more egregious Fourteenth Amendment rights violation by submitting false and perjured statements to the court in order to illegally detain the children. The last section of this brief shows a sampling of cases where over-exuberance in identifying child abuse can lead to egregious constitutional rights violations and the unnecessary tragic destruction of families. --------------------u-------------------SUMMARY OF ARGUMENT The facts of this case support the lower court’s findings that a Fourth Amendment violation occurred, whether this result is reached by standard probable cause, exigent circumstances or warrant requirements, or whether it is reached by the more relaxed Terry v. Ohio standard that the stop and inquiry must be "reasonably related in scope to the justification for their initiation." 392 U.S. 1 (1968), at 29. T.L.O.5 is inapplicable in the instant case because although the seizure occurred on school grounds, the nature of the seizure was unrelated to the special needs to maintain law and order on

New Jersey v. T.L.O., 469 U.S. 325.


school grounds, nor the special relationship between students and school officials.6 There is no need to create new exceptions to accommodate the needs of government employees investigating child abuse and neglect allegations, because there is no “social worker” exception to the traditional and sacred safeguards of the Fourth Amendment to the United States Constitution, which has adequately balanced the needs of both the government and private individuals for more than two hundred years. And whenever this Court has relaxed the traditional concept of probable cause and warrant requirement to accommodate exceptional needs, there has generally been sharp division in the Court with strong dissents. There are also risks of public disenfranchisement with the judiciary when constitutional rights are compromised and standards are rewritten without a public referendum in support thereof. Because this case revolves primarily on child interviews prior to a determination of probable cause, a closer look at the nature and reliability of these interviews is warranted. Child interviews are particularly vulnerable to manipulation and by their very nature require special handling and adequate training. Further, children often provide inconsistent responses, and are more apt to provide the kind of reply that they feel is expected of them. Prolonged interrogations tend to aggravate these
6 See also Jones v. Hunt, 410 F.3d 1221, 1228 (10th Cir. 2005) (holding the T.L.O. standard inapplicable to the seizure of a student that did "not involve efforts by school administrators to preserve order on school property").


vulnerabilities and distort the truth. Social workers are particularly apt to distort the facts of the interview in the absence of corroborative evidence in their over zealousness to find abuse or neglect and to “protect” the child. Numerous cases, including this case on hand, show how the allegations made by social workers can differ considerably from those made by children and their parents. Allowing unfettered access to children by social workers without the presence of a neutral party or without videotaping the interview, would in fact contribute to a plethora of constitutional rights violations, unnecessary and traumatizing detentions and examinations, and possibly even erroneous termination of parental rights. If anything, an abundance of caution should be taken when allowing interviews to be conducted between a social worker and a child than one might ordinarily require of any other police interview or stop. A multi-step balancing approach is unwarranted, for the following reasons: 1) there are no special needs here that have not been previously addressed or that differ from regular police enforcement activities, whether in apprehending criminals or in protecting society from harm; 2) Terry and other precedent case law suffice as controlling authority in deciding the reasonableness of child interviews under the Fourth Amendment when a warrant has not been secured and probable cause has not been established; 3) exigency provides both social workers and police officers the right to seize a child without a warrant when probable cause exists that the child is at risk of imminent or irreparable harm; 4) although the child is an alleged victim and 7

not an alleged suspect, she has an interest in maintaining her familial relationship which will be threatened when her Fourth Amendment rights are violated and she becomes the subject of intrusive physical examinations and unnecessary and traumatizing detention which can easily be secured when her interview is taken out of context or manipulated, and therefore she is not just a witness but rather she is a central figure in the investigation whose rights are heavily implicated no less than if she were the alleged perpetrator; and 5) creating new exceptions and new multi-step analyses will only invite confusion, increase costly litigation, and will threaten to undermine our rights and liberties secured only after centuries of struggle and sacrifice. Finally, a plethora of real life cases demonstrate that there is a high risk of irreparable harm to families when CPS acts out of overexuberance in seizing and detaining children without probable cause, and that once a child is seized, the balance of power shifts dramatically to CPS and its agents, including their evaluators and “therapists”, who are apt to embellish, exaggerate, distort the facts, create probable cause where none exists, and ignore obvious signs that negate their findings, thereby increasing the risk of an erroneous termination of parental rights, or at minimum the unnecessary prolonging of the children’s detention. --------------------u--------------------



ARGUMENT The Ninth Circuit Correctly Decided That The Instant Case Was A Seizure Under The Fourth Amendment And Petitioners Have Not Challenged That Ruling

Petitioners have not challenged the lower court’s determination that in the instant case a seizure under the Fourth Amendment occurred. See Pet. App. 18, 62. Nor is this question before the Court, therefore the Court should respectfully refrain from addressing whether the instant case was a seizure under the Fourth Amendment and move to resolve the question posed by Petitioners’ briefs: whether the seizure was in fact reasonable or not. Even if the question was posed to the Court, the answer turns to whether S.G. felt she was free to decline to answer any questions and to leave the room when she so desired. While not all official questioning, whether by the police or other public authority figures, would rise to the level of a “seizure” under the Fourth Amendment, so long as “a reasonable person would feel free to terminate the encounter” United States v. Drayton, 536 U.S. 194, 201 (2002), such was not the case here.7
The Fourth Amendment "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). `[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person,' id., at 16, and the Fourth Amendment requires that the seizure be `reasonable.'" United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).


In the instant case, it would appear that, at no point in time, was the minor informed that she had the option to end the interview or refuse to answer the questions that were posed to her. While not all children might react in the same manner as S.G., her behavior is not unusual for a nine-year old girl who feels compelled to obey the rules - after all the school counselor had acquiesced to the interview and there was no reasonable way that S.G. would have known that she had the right to just walk away from the interview and exit the room.8 Further, it is perfectly logical that a young girl trapped in a room possibly with a closed door, and left in the presence of two male authority figures unfamiliar to her, one of them in a police outfit and fully armed and possibly blocking the exit, and the other fully determined to get the answers he seeks even if it takes several hours, would feel intimidated and fearful to express her discomfort, and might be coerced into providing answers to questions that she feels the interviewer is expecting in order to secure her freedom without creating a scene. In conclusion, the facts of this case, including the intimidating nature of the interview in the presence of an armed deputy, the absence of a familiar school official, the minor’s age and her behavioral characteristics, including her inability or unwillingness to express her discomfort and her ensuing submission to coercive or repetitive questioning in the hopes of terminating the interview through acquiescence, all support the inference that
See also Jones v. Hunt, 410 F. 3d 1221 (2005) [holding that the encounter between a social worker, a deputy sheriff and the minor which lasted for about two hours was a seizure].


the minor did not reasonably believe she had the choice to end the interview or otherwise walk away from it, and ipso facto the child for the purposes of the Fourth Amendment was in fact seized. II. The Ninth Circuit Correctly Decided That The Reasonableness Standard Was Inapplicable Here Because The Interrogation Was Part Of A Criminal Investigation

The fact that S.G. was not a suspect, but an alleged victim, does not abrogate the findings of the lower court that the questioning was part of a criminal investigation against S.G.’s father. The lower court’s findings were based on the unique facts of this case and the unnecessary inclusion of a police officer in the interrogation process. Social workers frequently conduct interviews of children and parents without police presence. In fact, the only rare circumstances when a social worker may ask for police assistance is when a social worker is contemplating forced entry into a home or expects hostility or confrontation with the parent or guardian of the child. This interview occurred at a public school. Public school officials generally do not oppose intervention by social workers, and the child was only nine years old, therefore there was no practical need for the presence of a police officer or deputy. It may in fact be inferred that the deputy was present as part of a larger scheme of intimidating the young child into providing the answers that were sought. Further, the Ninth Circuit also concluded that the interview could not have been founded on the basis of exigency, 11

because the social worker released S.G. and allowed her to return to her mother and father despite his allegations that S.G. confirmed the sexual molestation. The lower court did not rule that all child interviews on public property are unconstitutional absent exigency, probable cause or a warrant, but rather the analysis was fact specific based on a determination that the seizure was part of a criminal investigation for the purposes of collecting evidence to prosecute the father rather than to protect the child from further abuse. III. The Seizure Of S.G. Was Not Reasonable Under Terry Or Any Other Fourth Amendment Test

Even had the Ninth Circuit analyzed this case under Terry, it is inconceivable that the court would have reached a different decision. In a similar case, Jones v. Hunt, 410 F. 3d 1221 (2005), involving an interview at school between a police officer, a social worker and sixteen year old Jones, the Tenth Circuit Court of Appeals concluded that the two or so hours of detention of Jones at her school in order to threaten and intimidate her into going home to her abusive father, was unreasonable even if analyzed under Terry.9
“It is ultimately unnecessary for us to decide what Fourth Amendment test is most appropriate in this case "because the conduct alleged in [this] case would violate the most minimal standard of which we can conceive." Snell v. Tunnell, 920 F.2d 673, 698 (10th Cir.1990). Even applying the Terry standard — that a seizure must be "justified at its inception" and "reasonably related in scope to the circumstances which


Terry held that the stop and inquiry must be "reasonably related in scope to the justification for their initiation." 392 U. S., at 29. In Terry, this Court concluded that law enforcement officers should not be compelled to abandon their investigation when they have reasonable suspicion that a crime is about to be committed. Further, the Court reasoned that a quick frisk of the outer clothing is not unreasonable because a police officer should not have to take a bullet as an answer to a question when he reasonably suspects that a crime has been or is about to be committed. An analogous reasonable seizure in this case would involve a brief conversation or questioning by the social worker in a less confined environment such as the school playground or in the hallway and preferably in the presence of a school officer. Such was not the case here. This interrogation lasted for two hours! Even one hour as alleged by Petitioners is still much too long.10 It is difficult to understand why such an interview would have lasted this long unless the questions were in fact repetitive with the intent of eliciting a certain response. Under the circumstances of this case, there was a violation of S.G.’s Fourth Amendment rights and the opinion of the Ninth Circuit should be affirmed even if the
justified the interference in the first place" — Haberman violated Jones' Fourth Amendment rights. Terry, 392 U.S. at 20, 88 S.Ct. 1868.” Id.
10 See also United States v. Brignoni-Ponce, 422 US 873 (1975) (“The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.”).


Court arrives at the same conclusion in a different way. Finally, New Jersey v. T.L.O., 469 U.S. 325 is inapplicable here because as both the Ninth Circuit Court of Appeals in this case, and the Tenth Circuit Court of Appeals determined, the case does not “involve efforts by school administrators to preserve order on school property, and therefore, it does not implicate the policy concerns addressed in T.L.O. and therefore does not merit application of the T.L.O. standard.” Jones, supra, at 1228. IV. Only A Brief Interview Is Appropriate Under Terry And Brevity Is Essential When Dealing With Children Due To The Inherent Unreliability Of Children’s Statements And The Ability Of The Interviewer To Contaminate The Results Thereby Increasing The Risk Of Error In Dependent Child Proceedings

In In re Lucero L. (2000) 22 Cal. 4th 1277, three-year old Lucero made spontaneous and consistent allegations of sexual abuse and there was plenty of corroborating evidence that her older sisters had been similarly sexually abused by Lucero’s father. Despite that, there was much contention as to the reliability and admissibility of Lucero’s hearsay statements.11
See also Should We Believe the People Who Believe the Children? The Need for a New Sexual Abuse Tender Years Hearsay Exception Statute (Winter 1995) 32 Harv. J. on Legis. [207] 238-239. As one author has observed, the various indicia of reliability of a child's out-of-court statements are by their


For example, a psychologist opined that “children younger than four had difficulty expressing their experiences verbally. Information had to be elicited with specific questions, but this led to doubt whether the child was responding to the statement inherent in the question or actually describing a personal experience.” Id. After viewing a videotaped interview of Lucero, the psychologist concluded that the minor was not able to differentiate between truth and falsity, did not comprehend the concept of good and bad touching, and possessed insufficient verbal skills to express her experiences. The videotape showed contamination (that is, the description of an experience the child then owned) regarding pain and names of body parts. Based on Lucero, and similar cases, it can be concluded that: 1) child interviews should be conducted by neutral professionals trained in handling these types of interviews and the questions posed must be age-appropriate, direct and not suggestive12; 2) the most reliable statements are spontaneous and consistent and do not entail prolonged questioning; and 3) child interviews need to be videotaped in order to allow the defense a fair opportunity to challenge the reliability of the child’s statements and to preserve the evidence and prevent
very nature sufficiently ambiguous manipulable.' (Lucero, supra, at p. 242.)





“Suggestive questions [such as “he touched you here, didn't he?”] asked every day for 11 months would yield an affirmative answer if the questioner appeared to want one, but would be likely to yield a negative response in another setting.” In re Lucero L, supra.


the all-too-frequent manipulation by social workers and county appointed evaluators of its substance and content as this instant case and many other cases indicate.13 In fact, the story that Camreta presents is in stark contrast to the one presented by S.G. Had S.G. been too young to testify and rebut the allegations made by the social worker, the outcome of this case might have been entirely and tragically different. The last section of this brief summarizes a few horrendous examples where over-exuberance in identifying child abuse have led to horrific consequences for the children and families concerned. Hence there is a heightened likelihood that subsequent to an interview with a young child which is not videotaped, and which is conducted in the absence of a neutral party, the child will be detained, because generally only a mere preponderance of the evidence is required to sustain a dependency petition and assume jurisdiction, and there will be no witnesses to rebut the allegations of the social worker or to testify on the reliability of the child interview. Once the child is in the custody of CPS the balance of power shifts dramatically to the State,
See, e.g., Deanna Fogarty-Hardwick vs. County of Orange (No. G039045), 2010 Cal. App. Unpub LEXIS 4436, 2010 WL 2354383 (Cal.App. 4 Dist. Jun 14, 2010) (In awarding the mother $4.9 million, the jury found that the social workers had lied about Fogarty abusing her children and that the Orange County Social Services Agency employed policies that condone perjury and are indifferent to the needs to properly train, supervise and select their employees.).


and parents no longer possess any rights to attend the child’s medical, mental health, or physical exams, nor the right to talk to their child in private, nor the right to select the examining doctor or therapist for the child, nor the right to retain an attorney for the child, nor for that matter the right to a jury trial. And, as the Santosky14 Court correctly concluded, the hearings will be fundamentally controlled by the State: “[T]he primary witnesses at the hearing will be the agency's own professional caseworkers, whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.” Id. at 764. Additionally, prior cases have shown that over time children can be easily manipulated15 into believing they have been abused, and the longer they are detained in the custody of CPS while the parents struggle to prove their innocence or fitness, the greater the likelihood that the bond between parent and child will weaken creating yet another argument to forever sever the relationship in the “best interest of the child”.

Santosky v. Kramer, 455 U.S. 745 (1982).

15 See, e.g., the case of Alicia Wade described in the last section of this brief.


Furthermore, the child is assigned an attorney who usually sides with CPS and often works against the parent, and to make matters worse, CPS can amend new allegations even innocuous or subjective ones like inadequate parenting skills, or bad judgment, that are not related to the initial reasons for the child’s detention, and then use these allegations to recommend terminating the rights of parents, which as mentioned previously, can be terminated under a mere preponderance of the evidence in California.16 A plethora of cases show that juvenile courts, which are over crowded and which operate on the principles of expediency and erring on the side of the child, very often do not adequately protect the due process rights of parents. In fact, it is estimated that more than 98% of all petitions are granted and that the courts view themselves as “pro-child”, which translates to “pro-CPS”.17
See, e.g., Konrad S. Lee and Matthew I. Thue, Unpacking the Package Theory: Why California’s Statutory Scheme for Terminating Parental Rights in Dependent Child Proceedings Violates the Due Process Rights of Parents as Defined by the United States Supreme Court in Santosky v. Kramer, 13 U.C. Davis J. Juv. L. & Pol'y, 143 (2009); and numerous unpub cases.
16 17 San Diego Grand Jury Report 1991-92, Families in Crisis: “Application of the standard of proof used in Juvenile Court dependency proceedings needs to be re-examined. The standard of proof at detention and jurisdiction hearings is "a preponderance of the evidence." While reasonable minds could disagree on this standard, the Jury was most disturbed by the quality of the evidence before the court. As a practical matter, evidence contrary to DSS' position is either excluded or ignored. DSS may weave its case with hearsay evidence and the speculation of "so- called" experts. More than 98% of all petitions are granted. (As the number of complaints indicates,


In conclusion, what may start out as a valid government interest in collecting evidence to establish probable cause to protect the child, can in fact easily result in the violation of several constitutional rights of the child and her family, including the likelihood that the parent-child relationship might be forever extinguished even when the allegations are later found to be untrue. Hence, because of the large number of false allegations of child abuse and neglect,18 the inherent lack of reliability of child interviews, and the lack of fundamental fairness and equity in dependency proceedings which can easily lead to erroneous determinations,19 and the grave fundamental private interests at stake, it is imperative to uphold the full
this figure is not the result of DSS exercising strict discretion in the filing of petitions.) The higher evidentiary standard of "clear and convincing" evidence is used only at the Disposition Hearing, which occurs only after the child has been separated from the family, for what is usually months. At this point in the proceedings, the "facts" are all but beyond dispute.”
18 See, e.g., National Coalition for Child Protection Reform: False Allegations: What the Data Really Show, available at:

It should be noted that appeals in dependency proceedings are generally ineffective at protecting the rights of parents because the trial court must consider the intervening events while the case is being appealed and must make decisions based on the “best interest of the child” and not the constitutional rights of the parents. Further, courts of appeal are wary of prolonging the uncertainty of the child’s permanency and are therefore less likely to reverse. Finally, habeas petitions have no cognizable meaning in these proceedings, Fogarty, supra.


protections of potentially the only viable constitutional barrier, the Fourth Amendment, against unjustified government intrusion and upheaval of the family unit, in order to balance the private and government interests at stake and minimize the risk of error. V. There Are No Special Needs In Child Neglect And Abuse Investigations That Outweigh The Private Interests At Stake

There are no special needs in child neglect and abuse investigations, and there is no “social worker” exception to the Fourth Amendment. See Dubbs v. Head Start, Inc., 336 F.3d 1194 (2003) at 1205.20 Carving out such an exception would involve rewriting the Constitution and compromising the protections this nation has held in high esteem since their inception. The need to protect children from abuse is a valid public interest but does not differ from the need to protect society from crime, which can vary in its degree of heinousness, including mass murders, torture, rape and armed robbery, but nevertheless does not warrant compromising constitutional protections on the basis of the gravity of the alleged conduct. Rather, this Court has consistently held the
20 See also Ferguson v. City of Charleston, 532 U.S. 67, 76 n. 9, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) ("we have routinely treated urine screens taken by state agents as searches within the meaning of the Fourth Amendment even though the results were not reported to the police."); Doe v. Heck, 327 F.3d 492, 509 (7th Cir.2003) ("the strictures of the Fourth Amendment apply to child welfare workers, as well as all other governmental employees").


Fourth Amendment to implicitly and adequate balance the interests at stake, by allowing search and seizure that is reasonable both at its inception and in scope, and in some cases, such as those that involve an entry onto private property, must be supported by a warrant or court order.21 With regards to the private interests concerned, children, like their parents, have a vested interest in their familial relationship and in the right to be free from unreasonable and unnecessarily abusive and intrusive interrogations, seizures, or body searches. Further, both private and public parties have an interest in the integrity and reliability of child interviews, because the public as well has an interest in minimizing the risks of unnecessary searches and seizure, prolonged detentions and the unnecessary extinguishment of family relationships. With respect to the governmental interest in conducting lengthy interviews, there is nothing to support the theory that children respond better
The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. Cf. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186. Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy. See Eaton v. Price, 364 U.S. 263 (1960), at 273-274.


under repetitive questioning or where accuracy can be better achieved by lengthy or coercive interrogative techniques. To the contrary, the interviewer can relatively quickly determine if a child has any knowledge of terminology that is not reflective of her age, or quickly assess the child’s changes in demeanor when asked short directed, non-suggestive questions about any alleged abuse. There are other ways of eliciting reliable responses or reactions without the need for prolonged interrogations, which tend to distort the evidence and undermine its credibility. Hence applying the reasonableness standard to child interviews on public property, one would conclude that only a brief non-coercive interview with a minor and only when there exists a reasonable suspicion that the minor has been abused or neglected, is reasonable under the Fourth Amendment. The reasonableness of the brevity of the interview and its substance would turn to the facts of the case. Any additional need to examine the children or subject them to lengthy interrogation would necessitate probable cause, exigency or a warrant. Petitioners and amici curiae for Petitioners claim that frequently probable cause in child neglect and abuse investigations can only be established as a result of interviewing the alleged child victim. That argument is not supported by any data or real life examples. In fact, a large number of substantiated child sexual abuse cases were initiated based on a spontaneous utterance by the child herself to a friend 22

or parent or school official. Further, in most child abuse cases there are visible signs of abuse such as a redness, swelling, bruising, etc., and/or physiological and emotional ones, including complaints about pains in private parts, discharge, fear, anxiety, depression, aggression, a sudden lack of attentiveness and deterioration of performance, and other warning signs, including sexually acting out in public, that frequently do not go unnoticed unless the child is being isolated from the public and is not attending school. Furthermore, under certain circumstances it is appropriate to interview the parents, and their reactions to these interviews could also either help establish or dispel probable cause. For example, there may be a simple explanation for an allegation made by a neighbor or a story taken out of context whether improvidently or maliciously, which could easily be clarified by a parent, thereby eliminating the only cause for the reasonable suspicion. Finally, many parents acquiesce to allowing the social worker to interview or at least observe their children in the hopes of circumventing the threat of seizure of their children with or without a warrant. The need for social workers and public officials working on criminal investigations to expend more time and effort in developing their investigatory skills and in discovering new and creative yet constitutional methods to achieve the goals of society would be stymied were this Court to provide them with an easy way out to establish probable cause and in the process compromise the constitutional safeguards for private individuals against excessive and unwarranted government intrusion. 23

Significantly, a new rule or categorical exception for investigating child abuse and neglect allegations would propagate into further new exceptions, new litigation and confusion. It would also tend to encourage public officials to push the limits in the belief that they will be able to prevail in creating new exceptions in response to new or unforeseen conditions, or to changes in public policies and public needs. VI. Real Life Horror Stories Of CPS Involvement Cautions Against Granting CPS Any Additional Power To Create Probable Cause

Alicia Wade Alicia Wade was an eight-year-old girl living in San Diego County, California, who was raped by a stranger entering her bedroom through a window. There had been multiple other similar rape cases in the neighborhood by child sex offender Albert Raymond Carder who was later convicted of them.22 Despite this, and the many similarities between those cases and Alicia's, San Diego CPS and County Counsel Elizabeth Jane Via, who as Deputy DA had prosecuted Carder, decided to pursue Alicia's father, James Wade. CPS proceeded to put Alicia through over a year of psychotherapy designed to force her to incriminate her father. After more than a year of continuing to insist the stranger she described in detail raped her, the questionable psychological

San Diego Union-Tribune Article on Wade Case.


techniques used by the therapy eventually led her to incriminate her father in late June 1990. In December 1990, James Wade was then arrested and charged with the rape of his own daughter. In the meantime, CPS had removed Alicia from her mother’s custody, stating that since the mother did not believe the allegations against husband James Wade, she must be unfit as a mother. CPS would not allow Alicia to be placed with anybody who knew her, and instead placed her into foster care with a family who later wanted to adopt her. CPS later raced to finalize the adoption before the results of a DNA test could become available. The test turned out to indicate that James Wade was not among the 5% of the population whose DNA matched the semen stains on his daughter's underwear. It took two and a half years for the Wades to be reunited with their daughter. The funds required to defend against the false prosecution financially ruined the Wade family and their parents. The County Counsel prosecutor in the case, Elizabeth Jane Via, knew about the serial child rapist Albert Raymond Carder as she had prosecuted him earlier for child rape cases in the area before charging James Wade with rape. Elizabeth Jane Via claimed in a juvenile court hearing "I was the DA on that case. There are no similarities to this, it's a waste of time to even consider it." More accurate DNA testing done in December 1992 confirmed that the semen stains on Alicia's underwear had a 100% match with the DNA of Albert Raymond Carder. This case led to a series of lawsuits and huge awards and loss of faith in the system. A San Diego 25

Grand Jury issued a scathing report against CPS in 1991-92.23 None of what transpired in the Wade case serves the private or public interests at stake. When CPS makes all the decisions, as they frequently do, society suffers as a whole. Without strict judicial oversight and a higher standard of proof these very same tragedies will continue to occur. Deanna Fogarty-Hardwick In November of 1999, Deanna FogartyHardwick brought her daughter K. to the therapist who had been engaged to help the girls “adjust[] to their father’s recent remarriage.” They reported to the therapist that Fogarty-Hardwick’s former husband had sexually abused K. As a result of which, the Orange County Social Services Agency (OCSSA) filed a petition. At the detention hearing, the court ordered the children remain in the custody of Fogarty-Hardwick, with her former husband allowed monitored visitation. At a monitored visit, one of the social workers “spoke with both girls, telling them they were required to visit with their father, and “if they didn’t visit with their father, the judge was going to put them in a home.”” Deanna Fogarty-Hardwick, at 4. At a hearing on an amended petition, the social worker “made false allegations against
In its scathing report against CPS, the San Diego Grand Jury found that in juvenile and family courts, "the burden of proof, contrary to every other area of our judicial system, is on the alleged perpetrator to prove his innocence. [As a result,] a parent making a false allegation of abuse or molest[ation] during a custody dispute is very likely to achieve the desired result." A subsequent jury largely concurred with these findings.


Fogarty-Hardwick, including assertions that she had caused her daughters to skip a mandatory visit with their father, and that she had told the children that their father was trying to take them away from her.” Id. at 4. “A therapist for the county also found that both parents had inflicted some degree of emotional abuse on the children, by virtue of their difficult relationship, but that the father was more able to differentiate between his own needs and those of his children, and was thus better at shielding the children from his emotional issues. The therapist concluded that while FogartyHardwick’s visits with the children should remain monitored, her former husband should be allowed unrestricted contact.” Id. at 6. The end result of all this was the removal of the children from the custody of Fogarty. It then took five years of supervised visitations and struggle in family court before Fogarty was able to regain custody of her daughters. In a civil lawsuit, the jury awarded her $4.9 million not including attorney fees. Again this case demonstrates the malevolence and arbitrariness of social workers in protecting the best interests of children. This is by no means a unique case, and shows how the power of the agency increases once a dependency is sustained even when the parent still retains custody of the child, which is not always possible as in the case of Alicia Wade. Just as importantly in an unpublished opinion by the Court of Appeal challenging the judgment in Fogarty’s favor, the Court explained that habeas petitions “would not be cognizable in an ordinary appeal.” Id. at 16. (See also In re Claudia E. (2008) 27

163 Cal.App.4th 627, 637 [characterizing the habeas corpus remedy as “a time-consuming process that is inimical to the expedient processing of cases and one which most likely will be impractical in the crowded dependency system.”].) Based on that, it is clear that once a petition is sustained, parents are severely handicapped in protecting their rights and their children’s rights even when constitutional violations occur, because dependency proceedings operate under a general rule of expediency, a mere preponderance of the evidence standard, few evidentiary rules, and as a general rule do not permit a collateral attack on the integrity or state of mind of the social workers nor on the constitutionality of their actions, and habeas petitions have no cognizable meaning in these proceedings.24 It follows then that the Fourth Amendment may be the last viable safeguard against unconstitutional behavior by the social services agents and its protections are thus paramount. Morris v. Dearborne This is yet another case of indifference by CPS and inadequate training which strongly cautions against permitting such agencies carte blanche access to interview children in order to establish probable cause for their removal. This case like many others also shows how CPS refuses to admit guilt
“We conclude that such a requirement [i.e. a collateral attack on the integrity of the social workers] would be inconsistent with the special nature of dependency proceedings and would interfere with the interests intended to be served in those proceedings.” Deanna Fogarty-Hardwick, supra, at 16.


and will maliciously continue to detain children even when it becomes clear that the allegations are unfounded, making the initial protections of the Fourth Amendment even more paramount. In Morris v. Dearborne, 181 F. 3d 657 (1999), a four year old was detained by CPS as a result of allegations of sexual abuse by a seriously misguided or ill-intentioned teacher, Defendant Dearborne, who conducted sessions with the child during which she allegedly “implicated the parents, using compound predicates and correctly spelled anatomical terms for genitalia.” Id. Despite the fact that CPS noted that the child could neither read nor write and only referred to male genitalia as “dangy” and the female’s as “yah”, and that during one of the sessions, it was observed that the child was not looking at the keyboard while she typed, and that the output would change when Dearborne was not looking at the screen, they still continued to detain this child for months exposing her to explicit sexual language and behavior. In the end, CPS with the further efforts of Dearborne, detained this young child for almost three years! The child’s father was denied any contact with his daughter for 36 months, and the mother was only allowed supervised visits. CPS eventually allowed the child to return home and dismissed the case without prejudice. CPS continued to maintain that the parents abused the child and kept the family under supervision. The father lost his job as juvenile detention officer because of the accusations and the mother claims the charges of abuse ruined their marriage. And even though the child was returned 29

they continued to keep the family under close supervision! Doe v. State of La. This case speaks volumes about the honesty and reliability of social workers investigating child abuse allegations and their abusive and awesome power in controlling the course of the proceedings and exposing children to unnecessary and malicious, removals and extremely intrusive examinations without probable cause based on a mere suspicion of sexual abuse. In this alleged sexual abuse saga, the social worker and the agency engage in a series of fabrications and unnecessary removals and intrusive investigations of two young children all stemming from a pediatrician’s report that the young girl had a vaginal irritation. After interviewing the daughter outside of the mother's presence and having the daughter play with anatomically correct dolls, the social worker informed the mother that the daughter had been sexually abused. The Sheriff's office then interviewed the daughter outside of the mother's presence. “The interview was videotaped. Immediately after the interview the mother was informed that the videotape provided conclusive evidence of sexual abuse. Subsequently, the mother asked to view the tape, but was informed that no tape existed. When she said that she knew a tape existed, the mother was simply told that she could not see it and was ordered to say nothing about it.” Doe v. State of La., 2 F. 3d 1412 (1993). 30

At a later time, the social worker and a Detective interviewed the son, but refused to videotape the interview or allow an independent child psychologist to be present. The social worker stated that the interview was inconclusive, but “insisted that the son undergo a proctoscopic examination, despite his parents' objections. The examination failed to produce evidence of sexual abuse. Subsequently, based on information provided by [the social worker], the District Attorney commenced a civil child-in-need-of-care proceeding.” Id. The social worker then commenced an unjustified investigation of abuse of the daughter and son by the grandparents, which was abandoned when father’s counsel intervened. In addition, CPS threatened the mother that the children would be placed in a foster home in another city if she did not give evidence that the children were sexually abused by the father. Eventually at a hearing about four months after the investigation began, father’s counsel requested that the videotape of the child interview be produced, but was told it did not exist. Under threat of a court order, the tape was finally produced. “The tape contained no proof that [the father] sexually abused his daughter. . . No evidence of physical abuse was presented at the hearing; two psychologists . . . opined that no abuse had occurred. The treating physician testified that there had been no abuse. In addition, [the social worker] admitted that the son had never made a statement to her to establish that either child had been sexually abused. Furthermore, although [the social worker] had 31

represented during the investigation that the culdoscopic examination of the daughter was inconclusive, the judge stated that the result of the exam was negative, and not inconclusive. The judge dismissed the charges against Doe immediately after the hearing.” Id. The aforementioned disastrous cases25 share a few common elements: 1) lack of probable cause at the inception; 2) overzealousness by CPS and their agents to identify abuse, even when the evidence points to the contrary; 3) a liberal attitude towards the fabrication of evidence and the exclusion of exculpatory evidence without any fear of consequences, and/or a severe lack of training in assessing abuse and the need for intrusive examinations; 4) overall inadequate due process protections; and 5) a complete disregard for the rights of parents and their children to maintain their family relationship without unnecessary government intrusion. The message of these horrific stories is clear: *** The balance of power cannot be shifted any farther towards the government. 26 ***
See also Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 1999) [This is a case that demonstrates how abiding by the warrant requirement would have prevented the tragic and warrantless removal of the children, because the initial suspicion was based on allegations by someone hospitalized in a psychiatric institute claiming ritual sacrifices. No reasonable magistrate or judge would have issued a warrant based on that information alone.].
25 26 See also Assessing the Costs of False Allegations of Child Abuse: A Prescriptive, available at:


CONCLUSION Social workers are notorious for twisting and fabricating the facts. When a result is negative, they label it “inconclusive”. When a child expresses normal anxiety from his separation, they label it an “attachment disorder”. When a child is bossy or exhibits a strong personality, they label it “dysfunctional”. When a child does not maintain good eye contact, they label it “autism”. When they have nothing specific, they label it “unspecified childhood disorder”, and the list goes on. These generally frivolous allegations are then presented in the social worker’s reports and admitted into evidence and even when contested at trial it is still considered reliable “evidence” which the courts of appeal frequently rely on in affirming the judgment below even in the face of conflicting testimony and evidence. Such is the nature of dependency proceedings and it all starts with the initial justification for the removal of the child. If constitutional barriers are lowered, more children will undergo unnecessary intrusive exams and detentions where they may actually for the first time be molested while in group homes or in foster care and, at the same time, the social workers will gain the upper hand in shaping the outcome of the dependency proceedings. The answer lies not in compromising constitutional protections but rather in forcing these agencies to improve their selection, training, supervision and discipline of their employees; in urging the state to enact legislation that better protect the due process rights of parents in dependency proceedings; in creating and appointing 33

independent private organizations that monitor the activities of these agencies; and in ensuring that those who intentionally and wantonly trample the rights of families, are held accountable to those families for damages. With adequate training there is no reason why a social worker could not dispel or establish probable cause with a few direct questions in the presence of a school official or on tape. There are no data that support the theory that intensive or lengthy child interviews have produced correct results or were necessary to establish probable cause, and as a general rule most parents acquiesce to allowing their children to be interviewed in their presence in order to circumvent their forced removal under threats by the social worker.27 Petitioners and amici curiae in support of them are basing their arguments on pure conjecture that probable cause often cannot be ascertained without interviewing a child, and that this lack of access creates a direct barrier to identifying child abuse. They have not supported their arguments with any specific data or cases.
27 See, e.g., Walsh v. Erie County Dept. of Job and Family Serv., 240 F. Supp. 2d 731, (ND Ohio 2003) [After resisting a warrantless entry into their homes, the Walshes, under coercive threats, agreed to allow CPS to observe the children on the porch. Dissatisfied, the police told the parents that: "If you make us go through the hassle of getting a warrant, rest assured we will cite you for anything we find in the home." Id. at 742. The police also allegedly warned that if the parents did not allow the caseworkers into the home, Mr. Walsh could be arrested for obstruction of official business. Walsh finally agreed under duress to allow their home to be searched.].


Further, relaxing the Fourth Amendment in public schools does nothing to protect children who attend private schools or who are home schooled. CPS needs to develop better training methods for detecting child abuse. Their record shows an uncanny ability to ignore serious warning signs, such as in the case of poor Joshua DeShaney28 but to religiously and vehemently pursue innocent families. They have been labeled as arbitrary and inconsistent, returning children to abusive parents and literally stealing children from loving parents. Their modus operandi is misguided at best and discriminatory rather than objective and reasonable. Until CPS cleans up their act, this Court should not give them additional leeway to abuse more innocent families. For the foregoing reasons, this Court should affirm the opinion of the Ninth Circuit Court of Appeal even if the Court arrives at the same results using a “balancing” test, permitting brief and reasonable interviews with a child at public schools when there is a reasonable suspicion that the child might have been abused or neglected. Dated: Jan. 10, 2011 Respectfully submitted, Niveen Ismail
28 See, e.g., DeShaney v. Winnebago County, 489 U.S. 189 (1989) (Despite multiple warning signs, and despite the social workers having access to visit the home of Joshua and to interview him, CPS was still unable to identify probable cause and left the child to be severely beaten by his father to the point of suffering permanent brain damage.).


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