What should school district officials do when Child Protective Services show up

Written by: Beth L. Sims, Esq. and Michael K. Lambert, Esq.

When Child Protective Services (CPS) shows up at your schoolhouse door asking to speak with one of your students concerning an allegation of abuse in the home, should district personnel let them in, no questions asked?

The answer is no. School officials would be well-advised to inquire whether CPS has a court order or other document condoning the investigation, as well as whether there is a reason to believe the child will be in imminent danger after leaving school. If school officials allow CPS access to the child without asking any questions, and it is later determined that CPS did not have a lawful basis for questioning the child in school, a court could later rule that the district participated in an unlawful seizure of the student. That could lead to financial liability to the district.

CPS is part of the state Office of Children and Family Services and operates locally under the authority of county governments. When school officials allow CPS to interview a student on school property or remove a child from school grounds in connection with a child abuse/maltreatment investigation, they are allowing a government agency to “seize” the student within the meaning of the Fourth Amendment of the U.S. Constitution. Courts have consistently held that CPS interviews of minor students in schools constitute seizures within the meaning of the Fourth Amendment.

The Fourth Amendment only prohibits “unreasonable” searches and seizures, so a seizure of a student is lawful when it is reasonable. Courts generally will find a seizure to be reasonable when parental consent has been obtained or when the seizing has been directed by a court order or warrant. Courts also have deemed seizures to be reasonable when CPS has had a reasonable basis (probable cause) to believe that abuse is occurring in the student’s household and that allowing the student to remain in the household would place the child in imminent danger.

What are the possible legal consequences if a school district grants access to CPS and the parents or guardians subsequently object? The parents may bring a lawsuit called a Section 1983 action against the county government, seeking monetary damages arising out of the allegedly unconstitutional actions of the county with respect to their child. The school district can be made a party to this action on the theory that its staff cooperated in the unlawful seizure by making the child available to the CPS staff, thereby making the unlawful seizure possible.

A court can find that a CPS interview violated a student’s Fourth Amendment rights. But school districts can take steps to minimize any potential liability.

In an August 2015 decision, the U.S. District Court for the Southern District of New York found that CPS workers interviewing a student in school without a reasonable basis constituted an unreasonable seizure under the Fourth Amendment. In Phillips v. County of Orange, the court said a school district that acts in concert with other governmental entities without a reasonable basis may be liable for monetary damages resulting from this type of constitutional violation.

In order for the district to avoid liability, it must make an appropriate effort to ensure that the seizure is reasonable in the absence of parental permission, a warrant or court order. However, there has been no clearly defined legal standard articulated by the courts that could serve to inform school districts on how to do that. Any form of due diligence by the school district before permitting CPS to access a child could influence a court when determining liability for a Fourth Amendment violation. Your district’s response to a CPS interview request will depend on how much liability risk the district is willing to bear with respect to CPS’s actions.

Your county government may or may not have established policies and procedures through which CPS makes the probable cause determination, communicates the basis of that determination to school districts and holds school districts and their staff harmless for relying upon the county’s probable cause determination. In the absence of such county policies and procedures, school districts would be well-advised to consider adopting a policy to only allow CPS to meet with students in school when there is a documented, reasonable basis to believe that abuse and imminent danger exist.

In the absence of a court order or warrant, the most conservative and safest approach would be to refuse to permit CPS access to the child unless CPS provides the school district with a signed letter from the County Attorney’s office stating that an investigation into whether there is a reasonable basis for believing that abuse and imminent danger exist has been conducted and concluded in the affirmative. Only after the district has received such a letter and consulted with its own legal counsel should the district allow CPS to interview or take custody of the child. If CPS officials are unable to produce this documentation, it does not mean that they cannot interview the child. Rather, it only means that they will not be permitted by school officials to interview the child at school.

If the county cannot produce documentation but school officials nevertheless have reason to believe that the child is in some form of imminent danger, they should exercise good judgment to ensure the child’s safety. Your school attorney can advise you on possible courses of action that won’t unnecessarily expose the district to liability. This may involve requiring something in writing from CPS stating the basis of their determination that there is a reasonable basis for believing that abuse and imminent danger exist. In urgent circumstances, district officials could accept some other form of assurance from CPS that probable cause exists. Districts would be well-advised to discuss its options with its school attorney and to confer with county officials before the situation arises.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Beth Sims and Michael Lambert of Shaw, Perelson, May & Lambert, LLP.

Lawsuit settled out of court after hearsay prompts probe

By Eric D. Randall

According to an anonymous caller to a state hotline, a family in Orange County had nude photos of their five-year old daughter on their refrigerator and “close friends of the family” (later identified as a former babysitter) had “witnessed specifics and confronted the family” about suspected abuse.

A worker for Orange County Child Protective Services came to the school with a police officer seeking to interview the child. They did not ask to speak with the school nurse, although one of the allegations was that the girl was a frequent visitor to the nurse’s office, according to federal court records.

Believing it was a legal obligation to permit such interviews upon request without parental consent, school officials removed the child from her kindergarten class and took her to the assistant principal’s office, where she was questioned by the visitors for 15 to 20 minutes. A school social caseworker said it “was ok” to answer the questions of the two strangers, who asked the girl whether she had any secrets, whether either of her parents ever touched her inappropriately, whether her parents argued and what about, and other questions. None of her answers were deemed consistent with abuse or maltreatment.

A home visit later revealed that the photos on the refrigerator showed the girl clothed in a mermaid costume. According to the caseworker’s notes, “All of the child’s private areas were covered and the child appeared happy.”

The parents later sued the county, the school district and the village alleging a violation of their daughter’s Fourth Amendment rights. In a 42-page decision issued on Aug. 19, 2015, U.S. District Judge Sidney H. Stein found the girl had been a victim of an unreasonable seizure in violation of her Fourth Amendment rights. He rejected motions to dismiss the case of Phillips vs. County of Orange without a trial. The case was settled out of court in January.

The decision devotes considerable attention to what protocols state and local authorities use – or are supposed to use – to determine whether an allegation of child abuse should be investigated. In a footnote, the court explained that there are two numbers for reporting: a general number and an unlisted hotline number for use only by mandated reporters – school officials who are legally obligated to make a report when, in their professional capacity, they are presented with reasonable cause to suspect child abuse or maltreatment (see http://www. nysmandatedreporter.org).

Calls to the listed hotline are subject to a higher level of scrutiny. All hotline calls to the unlisted number in which mandated reporters describe circumstances that would constitute “child abuse” if true are routinely transmitted to local authorities for investigation.

In the Phillips case, there was a twist. The caller was not a mandated reporter, but she used the unlisted hotline number to relay inaccurate hearsay.

“The school district appears to have relied on the general assertion made by CPS that there was a valid basis for the interview,” according to Beth Sims, an attorney with Shaw, Perelson, May & Lambert, which was not involved in the litigation. “Given the Phillips court’s analysis, school attorneys are left to grapple with what can be done to discern whether probable cause exists before a school district unknowingly joins in perpetuating what is later determined to be a Fourth Amendment violation.”

DOWNLOAD A PDF