ELA update: Interviews of child abuse victims by social workers
Published: February 8, 2010
Recently, the 9th U.S. Circuit Court of Appeal held in Greene v. Camreta that an interview of a student at school by a social worker and deputy sheriff, about allegations of sexual abuse by the student’s father, violated the girl’s right Fourth Amendment right against unreasonable “seizure” (e.g., questioning by law enforcement). According to the court, the social worker and sheriff could not question the child absent emergency circumstances or without obtaining a warrant, court order or parental consent.
Background:
In this case, the child’s father was arrested on suspicion of molesting his nine year old daughter and another child. A caseworker from the Oregon Department of Human Services, accompanied by a deputy sheriff, interviewed the child at school. The interview lasted two hours. The child first said that her father had molested her but later recanted, and a physical examination failed to confirm abuse. The child’s mother filed suit on behalf of her daughter, alleging that the questioning constituted a seizure under the Fourth Amendment and interfered with her child’s and the mother’s own right to have a parent present.
The court distinguished this case from searches and seizures by school officials related to maintaining school discipline. School officials do not need a warrant or parental permission, but they are required to demonstrate “reasonable suspicion” in accordance with long-established case law. However, in this case, school officials were not present and the interview had a law enforcement objective (i.e., the police investigation of the father, as well as a uniformed officer’s presence at the interview). For “seizures” by law enforcement, the traditional 4th Amendment protection applies, meaning that the seizure can only legally occur either 1) under exigent circumstances, 2) per court order or warrant, or 3) with parental consent.
It’s important to note that the school district was not a party to the litigation at this stage of the process; thus this case did not create any new liability for districts.
Impact on school districts:Defendants in this case have stated that they plan to appeal this ruling, and it is likely that this case will be reviewed by the U.S. Supreme Court. There is much debate in the legal community within the 9th Circuit as to how broadly to interpret this court decision or whether the holding can be limited to the specific facts of the case. However, districts will need to proceed cautiously until the case is ultimately resolved by the courts.
Interviews by social services agencies: California law (Penal Code §11174.3) authorizes social workers to interview students at school, and this opinion does not require districts to turn away social workers investigating reports of child abuse. In addition, this opinion does not require the district to require social workers to present a warrant, court order or evidence of parental consent prior to conducting an interview. However, if a social worker is accompanied by law enforcement, then district legal counsel may need to be consulted.
Interviews by law enforcement: While open to interpretation, this decision can be read to place limits on law enforcement interviews of children on school grounds, whether the interview is concerning an investigation of child abuse or another issue. Before interviewing a child, law enforcement should first 1) obtain a court order or warrant, 2) have parental consent, or 3) have an “objectively reasonable” belief that the child is in danger of harm if the interview or other police intervention is not done. Although it is the responsibility of law enforcement, not district personnel, to determine if the questioning is lawful and that these conditions are satisfied, school officials must be careful when acquiescing to student interviews by law enforcement and consult legal counsel as necessary.
Interviews by school resource officers or school personnel: This decision has no impact on interviews of students by school resource officers or other district personnel pertaining to school discipline issues.
Mandated reporters: This case has no impact on the laws regarding mandated reporting of suspected child abuse. Mandated reporters are required to report any suspected child abuse or neglect to the appropriate agency.
Next steps:In order to help ensure appropriate collaboration, CSBA is working with statewide associations representing law enforcement and discussing procedures to comply with the decision in the Greene case. It is anticipated that CSBA’s sample policy and administrative regulation BP/AR 5145.11 – Questioning and Apprehension and BP/AR 5141.1 – Child Abuse Prevention and Reporting will be updated to reflect these revised procedures.
In the meantime, districts are strongly encouraged to work with law enforcement and social services agencies in their county or city to develop a collaborative response.
Related link:A copy of the court decision can be found
here.