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Parents Guide to the System: Fighting gov't Child Trafficking, aka: CPS


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THELEGALWAY AT A GLANCE

PARENTS GUIDE TO THE SYSTEM

In Memory of Taler Barnes


You do not have to speak with a Government Agent or allow them to enter your home without a search warrant! 

When a government agent (social worker, police officer, etc) comes to your door, they are seeking your consent to allow them into your home.  Remain calm.  Say something like:

I understand your concerns and I'm happy to cooperate.  May I see your search warrant please?

The agent may try to tell you that a search warrant isn't required because you can give voluntary consent or he may try to make you believe you are required to allow him into your home. The agent might say, “I’m required by law to come into your home to investigate.” It is true that the agent is required to make an investigation which may include entering your home. However, this doesn’t give the agent authority to break the law. If the agent needs to enter your home as part of his investigation, he needs to obtain a search warrant.

Remember that the agent is the one asking you to circumvent the law.  You are acting within the law and he is asking you to ignore the law, skip procedure and just do things his way.

Don't be intimidated. Keep a proper perspective of the situation; you are willing to cooperate within the law.  The law dictates that a search warrant is required before entering a private home.  Your position should be:

I do want to cooperate.

I do not want to ignore proper procedure.

Why would you want to circumvent clearly established laws and procedures? 

Do not allow the agent to peer inside of your home or view your children. Do not answer any questions without seeing the search warrant and verifying it’s authenticity. Even minor questions such as your date of birth, name, number of children, etc. should not be answered without seeing a search warrant.


GAINING ENTRY BY THREAT OR INTIMIDATION

It is unlawful for the agent to coerce entry into your home by threatening or intimidating you. Federal courts are increasingly finding for parents who sue state agents for coerced entry.  The 9th Circuit recently ruled:

Any government official can be held to know that their office does not give them an unrestricted right to enter peoples' homes at will.

[It is] settled constitutional law that ... police could not enter a dwelling without a warrant even under statutory authority where probable cause existed.  The principle that government officials cannot coerce entry into people's houses without a search warrant ... is so well established that any reasonable officer would know it.

…appellants' claim, that "a search warrant is not required for home investigatory visits by social workers," is simply not the law.

[N]owhere is the protective force of the fourth amendment more powerful than it is when the sanctity of the home is involved. … Therefore, we have been adamant in our demand that absent exigent circumstances a warrant will be required before a person's home is invaded by the authorities."

— Calabretta v Floyd 189 F.3d 808 (9th Cir. 1999)

In the above case, a social worker and police officer coerced entry into the Calabretta home by threatening to break the door down. Even though the mother ultimately opened the door and allowed them to enter, she did so by coercion which is unlawful. Thus, the agents were held personally liable.

We recommend that you print the highlights of this case and other "warrantless entry" cases to hand to government agents who attempt to coerce entry into your home.  You may find these cases on our caselaw page.


EVIDENCE REQUIRED TO OBTAIN A SEARCH WARRANT

In order to get a search warrant, the agent needs some sort of evidence.  It can't be an anonymous phone call or allegations without any supporting evidence.

Even when the agent has enough evidence to obtain a search warrant, he is restricted to looking for specific things listed on the warrant. As an example, the warrant may give the agent authority to interview one of your children, this wouldn’t allow him to interview siblings or look through your home. It also wouldn’t require you to answer any questions.

Agents typically do not seek warrants because; a) they don’t have enough evidence to obtain one and b) they don’t wish to be restricted in their “investigations”.

This constitutional protection was put into place to protect families against unwarranted governmental intrusion into their private lives.  Don't waive it! When properly used, this protection is adequate to protect innocent families but will not serve to conceal genuine child abuse. purslaneCases

Find out the exact legal definition of child abuse and neglect in your state.  Once you've found the statute, research caselaw to find out how the courts have applied the statutory definition in other cases.

Courts base their rulings on what higher courts have ruled in the past. A hierarchy of courts is given below:

U.S. Supreme Court—applies to the entire United States
U.S. Court of Appeals—applies to that federal circuit
U.S. District Court—applies to that federal district
State Supreme Court—applies to the entire state
State Court of Appeals—generally applies to the entire state
State Circuit or District Court—applies to that portion of the state

If you find a case from the Second District Court and you are in the Third District, the Judge in your case isn’t bound by that ruling. However, these rulings may have a persuasive effect, meaning that you could persuade your Judge to rule your way because the Judge in a neighboring district did.

You can find laws and cases at a law library or on the internet. Findlaw is a good place to search for state laws.

CPS Watch provides free legal research to parents and pro bono attorneys.  To make a research request online, go to www.cpswatch.com/resources/researchhelp.htm. You may also make requests by mail.

Legal research requests return cases and code only, not advice on how to use the information. For parents needing advice, we offer an email service by subscription. You may subscribe to the CPS Watch Legal Information Group by going to lists.cpswatch.com. We currently have seven participating attorneys in the email group to answer parent questions.

Once you have the laws and caselaw, make sure that the case against you remains within that statutory definition.

It is very common for social workers to promulgate a mud-slinging campaign against you by filling the petition with irrelevant information. You should continually require them to show the court how their allegations are connected to abuse.

As an example, the state might put in the petition that the parent’s watch x-rated movies. While some people might find this distasteful, it has nothing to do with abuse or neglect. Thus, your task would be to require them to connect the alleged movie-watching to abuse or remove it from the complaint. You’d ask things like, “Are you alleging that the children were neglected or abused as a result of the movie watching?” and “Are you alleging that the children were unattended while the parents watched x-rated movies?” — “How exactly are you connecting the watching of x-rated movies to the alleged abuse or neglect?”

Another common accusation is that of ‘spanking’. The state will say that you regularly spank your child or that you use an instrument to administer corporal punishment, but won’t allege any injuries from the spankings.

Your focus would be on whether or not “regular spanking” or “spanking with an instrument” amounts to abuse. Again, you’d ask them to show you what law states spankings without injury are abuse? You needn’t bother admitting or denying the spankings at this point because it hasn’t been established that they would be abuse.

The temptation is to jump in and defend against the mud-slinging; to say that you don’t watch x-rated movies or that you use time-outs rather than spanking. However, this will lead you down a path of ridiculous, unrelated accusations and equally ridiculous defenses.

In the end it will burn up all your energy and bring out all your faults—faults that have nothing to do with child abuse or neglect.

It will also give the state things to use against you. As an example, you might admit that you do spank your child with an instrument but only as a last resort and have never left a bruise. The state will later say something like, “The parents admit to hitting their child with an object but are in denial about it’s negative effects.”

Social workers are notorious for twisting words and leaving out pertinent facts. The fewer words you give them to twist, the better off you’ll be. Here’s an example:

Social Worker: Does your husband have an anger management problem?
Mother: No.
Social Worker: Well does he get angry?
Mother: Of course he gets angry, everyone gets angry.

The worker wrote in her report:

Mother reports her husband “gets angry” and views this as normal behavior.

Is this what the mother said? Yes! Is it what the mother meant? No! Will the Judge get the wrong idea from this report? Yes! The worker is implying that the mother knows her husband is a threat but refuses to do anything about it. She’s setting the mother up to be accused of ‘failure to protect’.

The mother shouldn’t have been discussing her husband’s “anger” with the social worker before the worker had drawn a clear line between the alleged anger and the alleged abuse or neglect. And that discussion would’ve taken place in a courtroom on the record rather than in a social worker’s office.

The mother’s response to this allegation should be, “While not confirming the accusation, the defendant asserts that the presence of ‘anger’ doesn’t meet the statutory definition of child abuse or neglect.”

You should first ask yourself, “Does this meet the statutory definition of abuse?”. If it doesn’t, you needn’t bother defending it. Rather, shift the focus back to the state by requiring them to make that connection.

The mother could take time to explain the whole conversation and the intent of her statements, but this would take the focus off the true legal argument and create a situation where the worker’s credibility might be weighed against her own (their word against yours).

The point you want the Judge to see is that the state has failed to meet it’s burden of proof. There is no issue of credibility because even if the accusations were true, they don’t amount to abuse. If there’s no allegation of abuse or neglect, the state has no jurisdiction.

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lfare agency to release its records pertaining to the daughter so that he can examine them for supposed medical records, names of witnesses, and other exculpatory evidence, is entitled under the due process clause of the Fourteenth Amendment to know whether those records contain information that might have changed the outcome of his trial if they had been disclosed.
— Pennsylvania v Ritchie, 480 US 39, 94 L Ed 2d 40, 107 S Ct 989, 22 Fed Rules Evid Serv 1

A statute prohibiting the disclosure of information acquired by social workers from persons consulting them in their professional capacity is not applicable to information obtained by social workers investigating child abuse.
— In Interest of Pitts (3d Dist) 44 Ill App 3d 46, 2 Ill Dec 652, 357 NE2d 872

We suggest that you try to determine your state's law that allows access to records and make the request under that law. Government agents seem to respond to state laws more readily than to federal law. If you can't find the state's law or if your state law doesn’t permit access to records, send a combined request under the Freedom of Information Act and Privacy Act.

If the request is denied or ignored, send an appeal letter. A Privacy Act appeal letter can be found here.

If the request is denied or ignored, you can file a Motion to Compel Disclosure.

If this request is denied or ignored, file a Writ of Mandamus with the state court of appeals to compel disclosure of the records.  Mandamus has been used successfully to compel disclosure of records even in states where the parent's aren't allowed access to records under state law.

Since the Privacy Act is a federal law, all states must make records available

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