The Unchecked Power of Child Protective Services

​For all the focus on digital privacy, traditional Fourth Amendment violations by the government are as common as ever. One area of habitual constitutional overreach is child welfare, as illustrated by a recent, disturbing event in Waltham, Massachusetts.
 
In the early morning hours of July 16, 2022, officials from the Massachusetts Department of Children and Families, flanked by several armed police officers, knocked on the door of Waltham residents Sarah Perkins and Joshua Sabey and demanded the surrender of their children.
 
The officials had no warrant. There were no exigent circumstances. They had no reason to believe the children were in imminent threat of bodily harm. Yet, despite the parents’ reasonable protestations, the officers issued an ultimatum: Give us your children or we’ll break down the door and take them. Ultimately, Sarah and Josh gave in to the inevitable, ushering their sobbing children into the waiting cars of strangers, who whisked them away in the night.

Nationally, more than three million children come under the care of state child protective services each year. In cases involving home searches, according to a recent study by ProPublica, authorities rarely – if ever – obtain a warrant. In New York, for example, research shows that the Administration for Children’s Services obtained a warrant or entry order in less than 0.2% of instances.
 
The Fourth Amendment plainly states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” (The founders never thought it was necessary to also add, “and their children!”) That amendment requires a probable cause warrant to examine a home. Constitutional protections extend to the states through the Due Process Clause of the Fourteenth Amendment, yet child welfare agencies largely operate as though exempt from such constitutional strictures, regularly entering homes based on vague determinations of imminent threat to a child.

Let us be clear: such concerns are often well founded, and we support the right of the state to intervene to protect abused or neglected children. But there needs to be a lawful process. The case of Sarah Perkins and Joshua Sabey is an instructive example of what can happen when there are no guardrails on the discretionary exercise of police power.
 
These parents fell under the suspicion of child welfare authorities after taking their three-month-old to the hospital for high fever. When staff members conducted an X-ray, they discovered a healing rib fracture. Concerned about abuse, they called in a social worker who questioned Sarah about the injury.
 
For her part, Sarah had no clue how the injury occurred, though it was later determined that the child’s grandmother may have inadvertently caused it while removing the child from a car seat. For three days, the parents were subjected to a thorough investigation, which included home visits and persistent interference by state authorities, who found neither evidence of abuse nor danger in the home. Everything seemed fine until three days later, when a DCF supervisor made the seemingly arbitrary decision that the children should be taken into custody in the middle of the night.
 
Sarah and Joshua were eventually cleared of any misconduct and re-acquired full custody following several months of legal wrangling. But what about families that lack the resources to engage in such a prolonged fight?
 
The application of the Fourth Amendment to child protective services is an area that requires sharper legal definition. A circuit split exists on the issue and the Supreme Court has not specifically weighed in.
 
Sarah and Josh, meanwhile, have rightly filed suit against individuals at DCF and the Waltham Police Department alleging unreasonable search and seizure and due process violations under the Fourth and Fourteenth Amendment, respectively. They’re also working with members of the Massachusetts legislature on a new law that would require approval by an on-call judge before any after-hours removal. It’s a reasonable constraint on the currently unchecked power of a vast, often adversarial government bureaucracy.
 
There is no question that real and heartbreaking instances of child abuse occur. Child protective services must have the power to remove children from these circumstances. But such power must not be limitless. Of all our constitutional and natural rights, parental rights are the most precious.