In my state and many others, CPS does not seize kids, police do. The policy is dictated in part by a 6th Circuit Court decision.
My state isn't Arkansas and our CPS policies are dictated in part by a decision about the removal of children without a warrant or exigent circumstances. The Court decided there were no exigent circumstances in the case below.
We now turn to whether the law was clearly established on March 26, 2002, that a social worker could not seize children from their home without a warrant, exigent circumstances, or another recognized exception.
No. 11-4002
Kovacic et al. v. Cuyahoga Cnty. et al.
The social workers argue that the district court erred in denying their motion for summary judgment based on qualified immunity,
contending that exigent circumstances existed and that the relevant Fourth and
Fourteenth Amendment rights were not clearly established as of March 26, 2002.
A. Violation of a Constitutional Right
“[A] social worker, like other state officers, is governed by the Fourth
Amendment’s warrant requirement.”
Andrews v. Hickman Cnty.
, 700 F.3d 845, 859
(6th Cir. 2012). “This would simply mean that social workers would have to obtain consent, have sufficient grounds to believe that exigent circumstances exist, or qualify
under another recognized exception to the warrant requirement before engaging in
warrantless entries and searches of homes.”
Id.
at 859–60. Here, the social workers did not have a warrant to remove the children from their home. They argue that they complied with the Fourth Amendment nonetheless due to exigent circumstances.
When taken in the light most favorable to the children, as we must on the social
workers’ summary-judgment motion, these circumstances cited by the social
workers—reliance on weeks-old incidents and Nancy having missed the March 26
meeting—simply do not constitute exigent circumstances as a matter of law.
http://www.ca6.uscourts.gov/opinions.pdf/13a0201p-06.pdf
Ok. Again, I'm not sure what state you're talking about but the 6th circuit covers Kentucky, Michigan, Ohio and Tennessee and in none of those states have I found that is it mandated that
law enforcement remove the children. However, typically DCS has LE assist with removals from homes due to the danger aspect. If they remove a child when the child is at school, they typically won't utilize LE to assist.
Now in TN, there was an initial flurry as a result of the decisions you are talking about, which held that 4th amendment
restrictions to search and seizure without a warrant apply also to DCF/DCS workers. DCS in TN panicked and instituted a rule that they would not remove children from homes without a hearing. That rule was quickly rescinded and they now can only enter and remove a child from a home without a warrant if there are exigent circumstances.
The other three states covered by the 6th circuit had rules in place that mirrored the exigent circumstances requirement, before TN did.
http://archive.tennessean.com/artic...-reverses-policy-removing-children-from-homes
Well, that's pretty much how it is in most states. I don't know of one state in which any government agency is allowed to rush into a home and remove a child from that home, without a showing of imminent harm to the kids. It's akin to an officer responding to a call and hearing a person screaming for help inside a home. The officer does not need to wait for a warrant. They can enter. But only if there is an emergency situation.
But in the case you cited, DCS and the sheriff's department were acting on weeks old reports and apparently did not see evidence of an immediate risk of harm. So, they were found to have acted outside the limits of the fourth amendment and its exceptions by entering the home without a warrant or permission and then taking the kids.
However, those cases do not apply to this one. Let me make clear that the 6th circuit cases are really about entering a home to conduct an investigation, without a warrant. Those cases are about whether LE or DCF can demand and effectuate entry and search without a warrant. They are
not about whether children can be placed into custody without a warrant. Warrants aren't needed at all to take kids.
For example, if a child had been taken to a doctor and the doctor noticed signs of abuse, or if the child was at school and the school noticed signs of abuse, the 4th amendment would not apply to DCS or LE taking the child into custody. The issue is whether they are allowed to rush into someone's home in order to investigate a possible removal. There is a distinction.
But since many removals occur when the child is at home, it is crucial that the policies and procedures used not be violative of the constitution. In this case, there is certainly no evidence that there were such violations.
In this case, LE was present and had a warrant to enter and search the home, so that part was taken care of. They didn't have a warrant to take the kids, but as no warrant is needed to take children into custody, that didn't matter.
Clrealy, however, LE and DCS found there wqere signs that the children were at risk of imminent harm, thus the kids were removed. In Arkansas and in most states whose law I have reviewed, government agencies can take emergency custody of children without a court order (not warrant), if there is evdience of imminent harm. That is true in Arkansas. Per the law I cited in AR, children may be immediately removed from their parents' custody without a curt order if it is determined that a child is at risk of severe maltreatment.
That is apparently what happened here.
There is a message/ update on the facebook page supporting the Stanley parents, reportedly from Michelle Stanley. She states they began their "social services" yesterday, and that the kids are doing fine, and she can't talk about other details.
I'm guessing the courts have mandated a number of social services requirements for HS and MS, as a step toward eventual reunification, and that presumably MS (and presumably HS) are cooperating with the court's requirements.
I'm not sure if that would also indicate that criminal charges are more unlikely-- perhaps gitana1 can comment on this. I'm sure the prosecutor could still file charges if indicated, but wonder if the "social services" requirements they are engaging in make that more remote?
A related question for gitana1, if willing to answer.
Would a prosecutor offer deferrence of prosecution to encourage cooperation with a court ordered social services plan thru family court, or would that be a totally separate issue from regaining custody? As in, "no criminal charges will be filed, as long as you are in compliance with, and cooperating with, the family court ordered social services plan."
I do know that cooperation with a court ordered social services plan would usually be a requirement for regaining custody. I'm just wondering how that meshes with possible criminal charges.
For example, in the Shanesha Taylor case (woman in AZ who left her tiny kids in a hot car while interviewing), she did not comply (chronically) with some of the deferred prosecution agreement items, and eventually charges were reinstated. She faces trial in a few weeks. Her case was in both criminal court and family court. (But she had criminal charges from the very beginning, and the Stanley's apparently have not been charged criminally.)
I do think that if the family adheres to a social services safety plan, they are reducing their risk of being prosecuted. It may be a factor that the DA may consider in determining whether to charge them.
A prosecutor could offer deferred prosecution as long as the safety plan was followed but like you said, the parents haven't been charged and they would need to be charged first.
