Procedural Due Process under the Fourteenth Amendment
The right to procedural due process is implicated where a constitutionally protected liberty or property interest is concerned. Bd. of Regents of St. Colleges v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705 (1972). The crux of procedural due process is the right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994 (1972).
The U.S. Supreme Court has repeatedly held that parents have a fundamental right to make decisions as to the companionship, care, custody, and management of their children, which right is a protected liberty interest under the due process clause of the Fourteenth Amendment. Troxel v. Granville, 530 U.S. 57, 65–66, 120 S.Ct. 2054, 2060 (2000). As a result, there can be no doubt that the Fourteenth Amendment is implicated whenever the government seeks to separate a parent from his or her child, and due-process principles generally require the right to notice and a hearing before children are separated from their parents. Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir. 1997). The separation does not have to be carried out with force for due process to be implicated; instead, duress or coercion will be sufficient, such as where a social-services worker threatens to place the children in foster care if the children are not “voluntarily” placed outside of the home with family or friends. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d. Cir. 1997); Dupuy v. Samuels, 462 F.Supp.2d 859 (N.D. Ill. 2005), aff’d, 465 F.3d 757 (7th Cir. 2006).
However, where there is reasonable suspicion to believe that a child is in “imminent danger” of serious harm, a pre-deprivation hearing is not required. Hollingsworth, 110 F.3d at 739. In such a case, several courts have determined that a post-deprivation hearing must be afforded within 72 hours, even if such a hearing has not been requested by the family. Patterson v. Armstrong County Children and Youth Servs., 141 F.Supp.2d 512, 531-39 (W.D. Pa. 2001). Some courts have permitted slightly longer or required slightly shorter periods depending on the circumstances. Berman v. Young, 291 F.3d 976, 985 (7th Cir. 2002) (concluding that 72-day delay was “rather outrageous” but finding no damages); Jordan v. Jackson, 15 F.3d 333, 351 (4th Cir. 1994) (concluding that 65-hour delay was constitutionally permissible but was “near, if not at, the outer limit of permissible delay”); Lossman v. Pekarske, 707 F.2d 288, 290 (7th Cir. 1983) (approving a 12-day delay, but nothing that hearing would have occurred earlier if parents did not request additional time to prepare). In any event, where a child is seized based on the existence of imminent danger, due process is not negated, it is merely delayed, Suboh v. D.A.’s Off. of Suffolk, 298 F.3d 81, 92 (1st Cir. 2002), and the maximum permissible delay in providing a post-deprivation hearing “should ordinarily be measured in hours and days, as opposed to weeks.” Brown v. Daniels, 128 Fed. Appx. 910, 915 (3d. Cir. 2005) (unpublished).
In the scenario above, there has likely been a violation of the parents’ procedural due-process rights. The child was coercively removed without a pre-deprivation hearing despite the fact that there was no evidence that the child was in any imminent danger. Even if the child could have been in imminent danger, which is doubtful given the three-day delay between the anonymous report and the removal of the child, the child was separated from the child's parents for a month without the family being afforded a state-initiated post-deprivation hearing. Such facts could provide ample grounds for bringing a civil-rights action under 42 U.S.C. § 1983.
Seizure under the Fourth Amendment
The Fourth Amendment guarantees individuals the fundamental right “to be secure in their persons . . . against unreasonable searches and seizures . . .” by government officials. Several courts have held that the removal of children from their home is a seizure implicating the Fourth Amendment. Kovacic v. Cuyahoga County Dept. of Children and Fam., 809 F.Supp.2d 754, 771–75 (N.D. Oh. 2011), rev’d in part and aff’d in part, 606 F.3d 301 (6th Cir. 2010); Siliven v. Indiana Dept. of Child Servs., 635 F.3d 921 (11th Cir. 2011); Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011); O’Donnell v. Brown, 335 F.Supp.2d 787 (W.D. Mich. 2004); Gedrich v. Fairfax County Dept. of Fam. Servs., 282 F.Supp.2d 439 (E.D. Va. 2003); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003); Yuan v. Rivera, 48 F. Supp.2d 335 (S.D.N.Y. 1999).
Ordinarily, to comport with the Fourth Amendment, consent, a warrant or a court order, or probable cause to believe that serious abuse is occurring is required before a child may be seized by social services. Id. However, some courts have applied the “special needs” doctrine to child-abuse investigations, pursuant to which children may be placed in protective custody based on a lesser standard of reasonableness. Doe v. Bagan, 41 F.3d 571, 575, n. 3 (10th Cir. 1994); Wildauer v. Frederick County, 993 F.2d 369, 372–73 (4th Cir. 1993). In any event, an exception to the probable-cause requirement exists where there are exigent circumstances, which refers to situations where “real, immediate and serious consequences would certainly occur were a police officer (or social worker) to postpone action to get a warrant.” Kovacic, 809 F. Supp.2d at 774. Some courts have treated the concept of “imminent danger” under the Fourth Amendment identically to the concept of “exigent circumstances” under the Fourth Amendment. Good v. Dauphin County Social Servs. for Children and Youth, 891 F.2d 1087, 1093–94 (3d. Cir. 1989).
In our scenario above, a court might find that the seizure of the child violated the Fourth Amendment because the social worker did not have a court order or warrant, and there may not have been any exigent circumstances, especially given the three-day delay between receiving the anonymous complaint and acting upon it.
First Amendment Right to Familial Association
The First Amendment also provides a possible cause of action. Courts have recognized that the First Amendment protects the fundamental right to intimate association, which includes the familial association between parents and children. Doe v. Fayette County Children and Youth Servs., No. 8-823, 2010 WL 4854070, *18–19 (W.D. Pa. Nov. 22, 2010); Behm v. Luzerne County Children and Youth, 172 F.Supp.2d 575, 585 (M.D. Pa. 2001). Where government action substantially interferes with fundamental rights, such as the right to family relationships, it is subject to strict scrutiny, which means that the government must have a compelling reason for its action and its means to achieve its goal must be as narrowly tailored as possible. Id. Although the government certainly has a compelling interest in protecting children who are in danger, the seizure of a child from his or her parents, or the banning of all communication between them, is not always the most narrowly tailored means to achieve its goal. Id.
In our fact pattern above, unless social services had a reason to believe that the child was in danger, it did not have a compelling reason to separate the child from his parents. Moreover, unless separation was the most narrowly tailored means of achieving its goal of protecting the child from abuse, the First Amendment may have been violated.
Substantive Due Process under the Fourteenth Amendment
Outside of the child-seizure context, substantive due process can also be used as a sort of “catchall” for constitutional violations, and it applies when the actions of a government official are “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Roberts v. Mentzer, No. 09-3251, 2010 WL 2113405 at *4 (3d. Cir. May 27, 2010). Whether conduct “shocks the conscience” depends on the particular facts of the case and the period of time in which the child-welfare worker had to contemplate his or her actions. Doe v. Fayette County Children and Youth Servs., 2010 WL 4854070 at *9–18. One example of conscience-shocking behavior is where child-welfare workers remove children from their home and falsely advise the children that their mother had abandoned them. Behm, 172 F.Supp.2d at 584–85. Some courts hold that substantive due process may not be called upon when a specific constitutional provision (such as the First or Fourth Amendments) protects the right allegedly infringed upon. Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011).
Nonetheless, there appears to be an independent right to familial integrity under the Fourteenth Amendment, which is limited by the compelling governmental interest in the protection of children, particularly where the children need to be protected from their own parents. Evans ex rel. Evans v. Richardson, No. 08-C-5593, 2010 WL 1194272 at *5–6 (N.D. Ill. Mar. 19, 2010) (citing, Croft, 103 F.3d at 1125–26). However, a state has no interest in protecting children from their parents unless it has some definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse. Id. Therefore, if a child is separated from his or her parents based on insufficient evidence, the family’s right to familial integrity and, therefore, the right to substantive due process under the Fourteenth Amendment, will have been violated.
It appears from the fact pattern that the report of abuse was anonymous and that the child-welfare workers may not have had any other evidence of abuse. Given the fact that “an anonymous tip may justify investigation but will not provide reasonable grounds for removal of a family member absent independent, articulable criteria of reliability,” Croft, 103 F.3d at 1126, it appears that the parents’ and child’s rights under the Fourteenth Amendment right to familial integrity were violated.
While child-welfare workers have the important but difficult job of ensuring the safety of children, they nonetheless must act in accordance with constitutional principles. Child-welfare workers, and the agencies they work for, cannot and should not interfere with the fundamental constitutional right to familial relations and integrity, the right to make decisions as to the companionship, care, custody, and management of one’s children, or the right to be free from illegal seizure, without being subjected to a civil-rights action. Although it is nearly impossible to train social-service workers for every possible fact pattern and contingency, in the authors’ opinion, providing child-welfare workers with exhaustive and detailed training is the best way to avoid the substantial harm that can arise from the improper interference with a family.
Keywords: civil rights litigation, due process, First Amendment, seizure, Fourth Amendment, Fourteenth Amendment
Benjamin R. Picker is an associate with the Radnor, Pennsylvania, law firm of McCausland Keen & Buckman, and Jonathan C. Dunsmoor is a legal fellow at the Philadelphia offices of the American Civil Liberties Union of Pennsylvania.