High court punts on Bend girl's interrogation
Published: Tuesday, June 14, 2011, 6:15 AM
By Warren Binford
In February 2003, a 9-year-old girl was removed from her public school classroom in Bend and interrogated alone in a room with two male strangers. One of the men had a gun in plain view.
The other man asked her question after question about the most intimate details of her body and her relationship with her father. When she didn't provide the answers they seemed to want, the men repeated the questions several times. After two hours, the school buses arrived and the little girl feared that she would not be allowed to go home with her classmates. She finally relented and told the men she'd been sexually abused.
The men were a state social worker and a deputy sheriff, and the young girl and her sister were immediately taken into "protective" custody. Even though their mother was never implicated, the girls were placed with strangers in foster care. Both girls were subjected to forensic examinations for sexual abuse, without their mother's presence for comfort and support.
The examinations found no evidence that either girl had been sexually abused, and eventually the state dismissed all criminal charges related to the alleged abuse of the girls by their father. But the experience of the child welfare investigation was so traumatic that the girls were referred for psychological counseling.
The 9th U.S. Circuit Court of Appeals decided that the state social worker and the deputy sheriff had violated the girl's Fourth Amendment right to be free from unreasonable search and seizure. The case was appealed, and the Supreme Court agreed to review it. For the first time, the nation's highest court would decide whether the conduct in this case -- which is far too routine in child welfare investigations -- violates a child's constitutional rights.
The case, Camreta v. Greene, polarized the nation's child welfare community, pitting child advocates against social workers and attorneys general. Representatives of child welfare systems claimed they need unfettered access to protect children from abuse and neglect by parents. Attorneys for children and families argued that it was overzealous and insensitive government workers from whom children need to be protected. All were disappointed this spring when the Supreme Court issued its decision in the first major child welfare case it has heard in 21 years.
Instead of providing guidance to the nation's child welfare community, the Supreme Court punted on the issue, ensuring that scenes like the one in Oregon would be repeated in public schools across America and cases like Camreta v. Greene would wind their way through our nation's court system again. History need not be repeated, however, if government workers in the child welfare system are willing to heed the substantial research presented in this case and resolve to conduct their investigations in ways that are more collaborative, sensitive and supportive of children and their families, especially when those families are suspected of being in crisis. How?
Ask one of the parents for consent before interrogating a child. Ninety percent of the time, parents voluntarily grant permission. The vast majority of parents simply want to get the facts out so they can protect their child from further harm, whether from another family member or from the state's investigation. If the parent will not consent, obtain permission from a judge. Magistrates across the country are available 24 hours a day, seven days a week to issue warrants that are well-founded.
These warrants can usually be obtained within a few hours by telephone or fax. Only when it is an emergency, should a state agency bypass this safeguard when taking a child into custody without parental consent. Avoid protracted, insensitive interrogations. Instead, conduct developmentally appropriate, sensitive interviews.
For example, don't ask armed officers to participate, and if they must, put the gun away. Remember that physical examinations for sexual abuse are highly traumatic experiences for any child. Allow a family member who is not implicated in the abuse to be present to support and comfort the child. Finally, remember that few things are more traumatic for a child than separation from family.
Support family members in caring for the child while the investigation is conducted. If for some reason a parent cannot care for the child, find another family member or a close friend who can. Do not place the child with strangers except as a last resort. Camreta v. Greene might not have told us whether children have Fourth Amendment rights during child welfare investigations, but the case offers plenty of lessons to learn, nonetheless.
Let's hope that state welfare agencies take those lessons to heart so that they can protect children from all forms of harm, regardless of whether the perpetrator is a parent or the government itself. After all, harm done with good intentions is still harmful.
Professor Warren Binford is an associate professor of law at Willamette University College of Law, where she teaches international children's rights and directs the child and family advocacy clinic. She is a former foster parent and court-appointed special advocate for foster children.
Only a schizophrenic Lefty communist could be confused about WHEN an American citizen receives his Constitutional Rights- at BIRTH, if not at Conception. The truth is, the state agencies aren't going to learn any lessons until their criminal and tyrannical behaviors comes back to really hurt them. I would put most of them in prison for their Federal Capital Crimes against families.
WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - The Declaration of Independence