A due-process violation occurs when a state-required breakup of a natural family is founded solely on a “best interests” analysis that is not supported by the requisite proof of parental unfitness. Quilloin v. Walcott, 434 U.S. 246, 255, (1978) The mere possibility of danger does not constitute an emergency or exigent circumstance that would justify a forced warrantless entry and a warrantless seizure of a child. Hurlman v. Rice, (2nd Cir. 1991)

Walsh v. Erie County Dept. of Job and Family Services, 3:01-cv-7588. in White v. Pierce county (797 F. 2d 812 (9th Cir. 1986), North Hudson DYFS v. Koehler Family, filed December 18, 2000 , a juvenile judges decision on whether or not to issue a warrant is a legal one, it is not based on “best interest of the child” or personal feeling. The United States Supreme Court has held that courts may not use a different standard other than probable cause for the issuance of such orders. Griffin v. Wisconsin, 483 U.S. 868 (1987). If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial challenge in the higher courts. Anonymous tips are never probable cause. “[i]n context of a seizure of a child by the State during an abuse investigation . . . a court order is the equivalent of a warrant.” Tenenbaum v. Williams, 193 F.3d 581, 602 (2nd Cir. 1999). F.K. v. Iowa district Court for Polk County, Id.”

The decision in the case of Doe et al, v. Heck et al (No. 01-3648, 2003 US App. Lexis 7144) will affect the manner in which law enforcement and child protective services investigations of alleged child abuse or neglect are conducted.

The decision of the 7th Circuit Court of Appeals found that this practice, i.e. the “no prior consent” interview of a child, will ordinarily constitute a “clear violation” of the constitutional rights of parents under the 4th and 14th Amendments to the U.S. Constitution. According to the Court, the investigative interview of a child constitutes a “search and seizure” and, when conducted on private property without “consent, a warrant, probable cause, or exigent circumstances,” such an interview is an unreasonable search and seizure in violation of the rights of the parent, child, and, possibly the owner of the private property See State v. Hatter, 342N.W.2d 851, 855 (Iowa 1983) (holding the exigent circumstances exception to the Warrant Clause only applies when ‘an immediate major crisis in the performance of duty afforded neither time nor opportunity to apply to a magistrate.’). Second, as noted by the Second Circuit, ‘[i]n context of a seizure of a child by the State during an abuse investigation . . . a court order is the equivalent of a warrant.’ Tenenbaum v. Williams, 193 F.3d 581, 602 (2nd Cir. 1999). F.K. v. Iowa district Court for Polk County, Id.”

Good v. Dauphin County Social Servs., 891 F.2d 1087 (3rd Cir. 1989) held that a social worker and police officer were not entitled to qualified immunity for insisting on entering her house against the mother’s will to examine her child for bruises. The 9th Circuit further opined in Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), that ‘[b]ecause the swing of every pendulum brings with it potential adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous – whether it involves children or adults – does not provide cause for the state to ignore the rights of the accused or any other parties. Otherwise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long-term consequences for the child and, indeed, for the entire family. Ill-considered and improper governmental action may create significant injury where no problem of any kind previously existed. .’ Id. at 1130-1131.” “Decency, security and liberty alike demand that government officials shall be subject to the rules of conduct that are commands to the citizen. In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy. U.S. v. Olmstead, 277 U.S. 438 (1928), Justice Brandeis.

Children have standing to sue for their removal after they reach the age of majority. Parents also have legal standing to sue if CPS violated their 4th and 14th Amendment rights. Children have a Constitutional right to live with their parents without government interference. Brokaw v. Mercer County, 7th Cir. (2000) A child has a constitutionally protected interest in the companionship and society of his or her parents. Ward v. San Jose, 9th Cir. (1992) State employees who withhold a child from her family infringe on the family’s liberty of familial association. K.H. through Murphy v. Morgan, 7th Cir. (1990)

The forced separation of parent from child, even for a short time, represents a serious infringement upon the rights of both. J.B. v. Washington county, 10th Cir. (1997) Parent’s interest is of “the highest order.” And the court recognizes “the vital importance of curbing overzealous suspicion and intervention on the part of health care professionals and government officials.” Thomason v. Scan Volunteer Services, Inc., 8th Cir. (1996)

Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972). State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963). The Constitution also protects "the individual interest in avoiding disclosure of personal matters." Federal Courts (and State Courts), under Griswold can protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).

The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886). Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982). Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). . The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).

"Our court has recognized the liberty interest which parents have in the care, custody, and management of their children. Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.) (Myers) (citing Lehr v. Robertson, 463 U.S. 248, 258 (1983)), cert. denied, 484 U.S. 828 (1987); see Lux by Lux v. Hansen, 886 F.2d 1064, 1066-67 (8th Cir.1989) (Lux); Fitzgerald v. Williamson, 787 F.2d 403, 407(8th Cir. 1983). However, we have at the same time indicated that this right is not absolute. Myers, 810 F.2d at 1462; see Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir. 1994) (Martinez) ("The right to familial integrity, however, has never been deemed absolute or unqualified."); accord Hodge v. Jones, 31 F.3d 157, 163 (4th Cir.) (Hodge), cert. denied, 115 S. Ct. 581 (1994); Doe v. Louisiana, 2 F.3d 1412, 1417 (5th Cir. 1993)(Doe), cert. denied, 114 S. Ct. 1189 (1994); Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir. 1993) (Frazier). As we stated in Myers, "the liberty interest in familial relations is limited by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves." 810 F.2d at 1462. Moreover, as the First Circuit has correctly noted, "[t]he right to family integrity clearly does not include a constitutional right to be free from child abuse investigations." Watterson v. Page, 987 F.2d 1, 8 (1st Cir. 1993) (Watterson).

“The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections”. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981). “Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children”. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). “The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14.” Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).

Indicators:
#1 No warrant or court order were issued prior to child removal.
#2 There is no direct evidence in the court filings that indicate any injury or cause for “exigent "circumstances".
#3 Parents and or children not having legal representation at the first hearing after the child has been removed.
#4 There is no "trial on the merits" or "findings of fact" and "conclusions of law” in the court file.
#5 There are no hearings or evidence presented on the record to extend “emergency custody orders” as required by law.
#6 The holding of the children pending completion of DHS plans is justified by using an adjudication hearing, (much of the time based on “stipulation agreements”) And you will hear many say they were told it was “civil” court or “different” and Constitutional issues or civil rights aren't involved.
#7 Much of the time there will be no court reporter, no transcripts of hearings.
#8 Most will say they were told to “stipulate” to the petition by their lawyers, although the meaning and ramifications were not explained. But they're told that's the fastest way to get a “plan” started to get your children back.