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Warrant Training for New Social Workers

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Note: This is the updated version of this training to be presented beginning 2/21/12 as a half-day, in-person training for CS CSW staff. The training was modified and its’ contents were agreed to, as of 2/8/12. In addition to this in-person training, there will be a required e-learning component that will be assigned to staff upon completion.

NOTE: For the Nov. Dec. 2011 large venue (100 +) sessions two slides were added to allow more discussion at tables and the post test was added at the end-it is also a handout. This version includes updated slides regarding school interviews following the Sup Ct’s decision in Greene v. Camreta. This updated PPT first presented at CORE Academy on 07/22/11.

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Warrant Training for New Social Workers

  1. 1. Search Warrant and Removal Order For New CSWs OFFICE OF THE COUNTY COUNSEL Los Angeles County [CHS 451085 Revised September 2013 to CHS 475639] This document, including any and all attachments, is intended for the official and confidential use of the recipients. The information contained in this document, and any and all attachments, is privileged and strictly confidential under state law, including but not necessarily limited to, Evidence Code section 954 [lawyer-client privilege], Welfare and institutions Code sections 827 [confidentiality of juvenile case files] and 10850 [confidentiality], and Government Code section 6254(c) [records exempt from disclosure]. This document, and any and all attachments, may not be copied, shared, used or distributed in any manner inconsistent with it's intended use. It may be shared only with authorized persons who are reasonably necessary to accomplish the purpose for which the document was made. Moreover, this document, including any and all attachments, contains information that may be confidential, privileged, attorney work product, or otherwise exempted from disclosure under applicable law, including but not necessarily limited to, Evidence Code section 915 [attorney work product].
  2. 2. 22 Discussion Today UNDER WHAT CIRCUMSTANCES CAN A CSW LEGALLY  Enter A Home As Part Of An Investigation?  Interview A Child?  Conduct A Visual Inspection of A Child?  Obtain A Medical Exam of a Child?  Obtain Remedial Medical Treatment for a Child?  Take A Child Into Protective Custody?
  3. 3. 33 Discussion Today  WARRANTS & OTHER COURT ORDERS  CONSENT  EXIGENT CIRCUMSTANCES Learn How These Topics:  Relate to every child abuse investigation, and  Answer all of those questions. See DCFS Policy 0070-570.10
  4. 4. 44 What U.S. Constitutional Rights Do All Parents & Children Have? 4th Amendment  Right Against Unreasonable Searches & Seizures  Searches of Homes & Persons  Seizures of Items & Persons 14th Amendment  Right to live to together as a family without governmental interference, and not be separated without Due Process of Law  Applies to Removals of Children
  5. 5. 55 What is a Warrant?  A warrant is simply a type of court order that is signed by a Judge.  It can authorize:  Entry to a residence;  Search of personal property or things; and the  Seizure of items or persons—including a child.  Warrants and other court orders are used by government officials, such as Police and Social Workers, to conduct investigations.
  6. 6. 666 Types Of Court Orders A CSW May Need  Search Warrant  COURT ORDER TO ENTER A RESIDENCE TO:  Inspect and Search the Home  Interview Child  Conduct a Visual Physical Exam of Child  Take Child for a Medical/Sexual Abuse Exam  Court Orders for:  INVESTIGATIVE MEDICAL/SEXUAL ABUSE EXAM OF A CHILD  SCHOOL INTERVIEW OF CHILD  REMEDIAL MEDICAL TREATMENT OF A CHILD  Removal Order  COURT ORDER TO PLACE CHILD IN PROTECTIVE CUSTODY; can include authorization to:  Enter Home to Remove Child, and/or  Obtain a Medical/Sexual Abuse Exam of Child.
  7. 7. 77 What Legal Exceptions Permit A CSW to Act Without First Obtaining A Court Order? CONSENT EXIGENT CIRCUMSTANCES – Immediate Risk
  8. 8. 88 WHEN A COURT ORDER IS REQUIRED A CSW Must Always Obtain An Order PRIOR To  Entering or Inspecting a Home  Interviewing a Child  Conducting a Visual Inspection of a Child  Obtaining a Medical Exam of a Child, or  Removing a Child from a Parent/Legal Guardian’s Custody  Obtaining Remedial Medical Treatment for a Child Before Detention Hearing (only used for small timeframe: child physically detained by DCFS until initial detention hearing) UNLESS A CSW Has:  CONSENT of the Parent/Legal Guardian, or  EXIGENT CIRCUMSTANCES EXIST CSW does not have time to get an order (3-6 hours) because the emergency nature of the situation places the child at immediate risk of serious physical harm.
  9. 9. 99 NO NEED FOR A COURT ORDER  IF Parent Or Legal Guardian CONSENTS to:  Entering or inspecting the residence  Interviewing a Child  Conducting a visual inspection of a Child  Obtaining a medical exam of a Child, or  Removing a Child from the Parent/LG’s custody  Remedial Medical Treatment Before Detention Hearing  Or EXIGENT CIRCUMSTANCES EXIST.
  10. 10. 1010 SAME RULES APPLY TO BACK-END CASES For investigations involving a child that is under the care and custody of a Parent or Legal Guardian, and there is a potential need for removal of the child via a WIC 387 or WIC 342 Petition:  A Court Order Will Also Be Required To  Enter and inspect a home  Interview a Child  Visually inspect a Child  Obtain a medical exam  Remove a Child  Unless The CSW Has  CONSENT or  EXIGENT CIRCUMSTANCES EXIST.
  11. 11. 1111 Consequences of Violating a Warrant Requirement Potential Civil Liability For Social Workers  Unreasonable Searches and Seizures in Dependency Cases are 4th and 14th Amendment Violations  Actionable under 42 U.S.C. § 1983  Civil Rights Liability includes attorney fees  Punitive Damages
  12. 12. 1212 No Civil Immunity if CSW Acts with Malice CA Govt. Code § 820.21. The defense of Civil Immunity will not extend to a CSW if any of the following are committed with “malice”; examples of malice:  Perjury  Fabrication Of Evidence  Failure To Disclose Known Exculpatory Evidence  Obtaining Testimony By Duress  Fraud  Undue Influence Malice means: conduct that is intended by the CSW to cause injury or despicable conduct that is carried on by the CSW with a willful and conscious disregard of the rights or safety of others.
  13. 13. 1313 CONSENT
  14. 14. 1414 A CSW Must Obtain Lawful Consent FOR CONSENT TO BE LAWFUL, IT MUST BE GIVEN FREELY, VOLUNTARILY, and KNOWINGLY.  Consent means permission.  A CSW must never coerce, threaten, or force a person to agree to the CSW’s requests.  NOTE: Consent for medical treatment and educational issues is needed as well – See DCFS 179
  15. 15. 1515 Two Types of Consent ACTUAL CONSENT  Is usually given verbally. Could be given in writing.  “Yes, come on in.”  “Yes, you may talk to my child.”  “Yes, you may check my child for injuries.” IMPLIED CONSENT  A gesture indicating permission is given.  A hand movement signaling that it is okay to act.  Opening the door and/or stepping aside to indicate that entry is authorized. NOTE: A CSW should always try to confirm any non-verbal gesture to ensure that consent is actually being given:  “Is it okay that I come in?”  “May I come in to speak to you and your child?”
  16. 16. 1616 SCOPE OF CONSENT A CSW CANNOT EXCEED THE SCOPE OF THE CONSENT GIVEN "Scope" refers to what the person has agreed to or will permit to be done with respect to Entering/Searching/Inspecting/Interviewing. Example:  A parent may let you enter the home to speak to him, but may not agree to permit you to:  search the residence, and/or  look inside a refrigerator, and/or  speak to the child.
  17. 17. 1717 WITHDRAWAL OF CONSENT A PERSON IS FREE TO LIMIT OR WITHDRAW CONSENT AT ANY TIME. If Consent Is Withdrawn,  CSW must immediately stop the conduct,  or limit it to that which is still permitted,  unless exigent circumstances exist to support the CSW’s actions.
  18. 18. 1818 ENTRY INTO HOME Who Can Give Consent? Apparent Authority to Consent A CSW must have a good faith belief that the person giving consent has the authority to do so.  In most cases, a person who can consent to enter a home must:  live, or appear to reside, at the residence,  and must appear competent enough to fully understand that he/she is giving consent to enter the home.
  19. 19. 1919 PARENTS • TWO PARENTS RESIDING IN THE HOME One Parent can give consent to enter and search the home, even if the other Parent is absent or objects. HOWEVER, • If both Parents are present in the home, & • ONE PARENT OBJECTS, • DO NOT ENTER (unless there are exigent circumstances). • INSTEAD, immediately consult with SCSW and/or Warrant Desk. • If the objecting Parent is no longer present, and the other Parent consents, then the CSW may enter/search.
  20. 20. 2020 Other Adults Residing In The Home  CSW must have some reason to believe that the person has joint control or access to the places or items to be viewed that would indicate that the person authorizing the entry has the authority to do so.  If the residence is shared with an adult co-occupant, the co-occupant may consent to entry and search of "common areas," such as a living room, dining area or kitchen, but not private areas that belong to others, such as bedrooms, private bathrooms, closets.  HOWEVER:  If one co-occupant objects to entry/search, DO NOT ENTER. Instead, consult with SCSW and/or Warrant Desk.
  21. 21. 2121 Babysitter or Caregiver  May authorize entry into common areas or the child’s room if that person has authority to consent.  Person need not be an adult, but……  Circumstances must demonstrate that person is  competent,  has been given authority to allow entry to the home, &  has responsibility over the areas in the home entered or searched by virtue of the fact that the home owner told the babysitter which rooms, areas, things and/or places he/she may enter, or it is an area where the child stays or where objects needed to care for the child are used/stored.
  22. 22. 222222 ENTRY INTO HOME Persons Who Cannot Consent Motel managers, landlords, and custodial staff cannot consent to entry into rented rooms or apartments.
  23. 23. 2323 WHAT IF CONSENT TO ENTER IS DENIED & EXIGENT CIRCUMSTANCES DO NOT EXIST? CSW WILL NEED A WARRANT/ORDER TO ENTER At a minimum, from the doorway:  ask to see the child outside,  observe any rooms and objects that are in plain view, and  observe the outside surrounding areas, so you can assess the urgency of the situation. Make efforts to get a good look from outside.
  24. 24. 2424 How Can A CSW Remove A Child Based On CONSENT? VOLUNTARY PLACEMENT AGREEMENTS A Parent/Legal Guardian must consent freely and voluntarily.  WIC 16507.4 authorizes an out-of-home placement of a child without adjudication by the court only if  there is a “mutual decision” between the parent/guardian and DCFS; and  a written agreement specifying the terms of the voluntary placement.  ALWAYS GET CONSENT TO REMOVE IN WRITING!! DCFS Policy Guides: 0070-548.25 (Safety Plans); & 0100-510.21 (VFRs)
  25. 25. 2525 PRACTICE TIPS:  When you go to a home, always make a mental note of everything you observe. Assume you won’t get a second chance to get into a house.  Your observations are critical in justifying a court order or warrant request and must be detailed in any affidavit.  Observe & Document:  Demeanor and physical condition of the child, the parent, any siblings or other persons in the home,  Physical condition of the home,  All sights, sounds and/or smells relevant to your investigation.
  26. 26. 2626 EXIGENT CIRCUMSTANCES
  27. 27. 2727 EXIGENT CIRCUMSTANCES Federal Definition* CSW can act without Warrant/Court Order if:  CSW has reasonable cause to believe  Child is in imminent (immediate) danger  Of serious bodily injury  And the scope of the CSW’s intrusion is reasonably necessary to prevent that specific injury. *Wallis v. Spencer (9th Cir. 2000) 202 F.3d 1126, 1138
  28. 28. 2828 What is “Imminent” Danger? When a CSW does not have time to obtain a Warrant or Court Order because of the immediate risk of serious harm to the Child. Before acting on the basis of Exigent Circumstances, a CSW must always ask:  “Do I have time to get a warrant or court order before the child will likely suffer serious physical injury?”  Usually 3 to 6 hours
  29. 29. 2929 EXIGENCY- California Statutory Law Peace Officers (WIC § 305) Can take a Child into protective custody without a warrant or court order if: Officer has reasonable cause to believe  Child is described by WIC § 300  AND Child  Has an immediate need for medical care,  Is in immediate danger of physical or sexual abuse, or  The physical environment or fact child is left unattended poses an immediate threat to child’s health or safety. Social Workers (WIC § 306)  1) Can receive and maintain, pending investigation, temporary custody of a child who has been delivered to CSW by a Peace Officer (see also WIC § 309); or  2) Can take a child into protective custody without a warrant or court order CSW has reasonable cause to believe  Child is described by WIC § 300 (b) or (g),  AND Child  Has an immediate need for medical care,  Is in immediate danger of physical or sexual abuse, or  The physical environment poses an immediate threat to child’s health or safety.
  30. 30. 3030 EXIGENCY- Additional Requirements per WIC § 306  Prior to taking temporary custody of the child without a Warrant/Court Order,  CSW must consider whether the child can remain safely in the home, including whether:  REASONABLE SERVICES would eliminate the need for removal; or  Whether a non-offending caretaker can provide for and protect the child from abuse/neglect, and the alleged perpetrator voluntarily agrees to leave the residence, does so, and is likely to stay out. -But remember: this would require juvenile court action to make the arrangement permanent. -Also, safety plans are only temporary. (See DCFS Policy 0070-548.25.)
  31. 31. 31 A Peace Officer Delivers A Child to CSW (WIC § 309, DCFS policy 0070-547.13)?  Immediately release the child to parent, guardian, or responsible relative,  Unless,based upon CSW’s further assessment, CSW finds the same emergency factors that would justify removal from the home, including:  The child has no parent/guardian/responsible relative willing or able to provide care; and/or  Continued detention of the child is a matter of immediate and urgent necessity to protect the child, and there are no reasonable means to protect the child at home or with a responsible relative; and/or  There is substantial evidence the parent/guardian/custodian will flee with the child; and/or  The child has been voluntary surrendered as a Safely Surrendered child (pursuant to Health and Safety Code § 1255.7); and/or  The child is AWOL from a court-ordered placement.
  32. 32. 32 “Do I have Exigent Circumstances?” 2 Step Process Approach To determine if a child may be detained without a warrant or court order, think about it as a two step process:  FIRST: Is this the type of harm/risk that a CSW may act upon without a warrant/removal order?  SECOND: If it is the type of harm/risk a CSW may act upon without a warrant/order, is that harm or risk to the child determined to be “immediate?”
  33. 33. 33 “Do I have Exigent Circumstances?”  STEP 1. Does the investigation involve at least one of the types of harm/risk below? (WIC § 306)  Is there a threat of serious physical harm; and/or  Is there a threat of sexual abuse; and/or  Is there a threat of physical abuse; and/or  Is there a need for medical care for a serious medical condition; and/or  Does the physical environment pose a risk to the child's health or safety?  NO: If no box can be checked, a warrant/court order will be required for a CSW to detain the child.  YES: If any one of the boxes can be checked, then go to “STEP 2."
  34. 34. 34 “Do I have Exigent Circumstances?”  STEP 2. If so, is there "Immediate Risk?” • In the time that it would take to prepare, obtain, and return to serve a warrant/order, is there reasonable cause to believe the child is likely to experience serious bodily harm, be beaten, or be sexually molested?  NO: If not, a warrant or court order will be required for a CSW to detain the child.  YES: If the “Yes" box can be checked, then the CSW may detain without a warrant or court order.
  35. 35. 35 “Flight Risk” or “Child Concealment” As Factor for Determining Immediate Risk:  The fact that a parent is a "flight risk" or that the whereabouts of a child is being withheld,  may act as a factor in determining whether there is an "immediate risk" of harm to a child, such that the child can be detained without a warrant/order.  However, the underlying allegations must be serious and fall under one of the types of harm described in STEP 1 (WIC § 309).  Non-serious allegations, such as • a dirty home; and/or • emotional abuse,  may not be enough for exigent circumstances, even if the parents are a "flight risk."
  36. 36. 363636 What About Exigency Based On Allegations of Emotional Abuse/WIC § 300(c)? Usually cannot form the basis of exigent circumstances.  Unlike Physical harm and Sexual abuse that can have immediate and dire consequences, emotional harm by its nature usually does not carry the same immediacy.  If emotional abuse is the ONLY Allegation, a Court Order will be required,  Unless the CSW can articulate specific facts showing exigency based upon the Child’s emotional state.  EXAMPLE: Child is suicidal and parents refuse or are unable to act such that Child may harm themself in the time that it would take the CSW to obtain a Court Order if Child is not taken into protective custody.
  37. 37. 37 Baby Joe  Open FR case involving physical abuse, DV, Mo’s drug use and a dirty home.  Mo failed to reunify with older children – 5 of whom are in PP.  Mo is homeless and still together with Fa.  Mo and Fa have extensive DCFS & DV history.  Parents failure to comply with case plan and to reunify is well documented.  Mo gave birth to baby Joe 2 weeks ago.  Newborn removed from Mo 1 week after birth – no explanation as to delay between DOB and detention date.  Reason for detention “at risk due to siblings having been abused and mother not having reunified with this child’s six siblings.”  DCFS informed Mo throughout pregnancy that there was a possibility that her baby would be detained.  Baby was detained from Fa, although report does not specifically address reason (presumably for same reasons child was detained from Mo).  DCFS convened a TDM –removal may have occurred at or after the TDM. Attorney/Client Privilege & Confidential Attorney Work Product
  38. 38. 38 Analysis of Baby Joe Case  Reminder: The rule is DCFS must have a court order to remove from a parent, even when there is an existing dependency court case, unless there is an exception:  Did DCFS have a court order in this case?  If no, what exception applies?  Was there consent to remove?  If no consent, was there exigency? Attorney/Client Privilege & Confidential Attorney Work Product
  39. 39. 39 Apply the Exigency Analysis  1. “Do I believe that this CHILD is described by WIC 300?  2. “Do I believe this CHILD is:  at risk of serious physical harm or sexual abuse, and/or  in need of medical care for a serious medical condition, and/or,  in an environment that poses a threat to Child’s health or safety?”  3. “Do I need to act immediately because I believe the Child will be seriously physically harmed in the time it would take me to prepare, obtain, and execute a warrant/court order, which could take 3-6 hours depending upon the circumstances?” Attorney/Client Privilege & Confidential Attorney Work Product
  40. 40. 40 Conclusion:  Was Baby Joe removed:  By court order?  By parental consent?  By exigency? Additional Considerations: Does an open case create exigency? Does failure to reunify create exigency? Does failure to comply with the case plan create exigency? What happened between birth and the TDM? How does waiting until a TDM to detain affect the finding of exigency? Attorney/Client Privilege & Confidential Attorney Work Product
  41. 41. 4141 What Else Should A CSW Know About Exigency?  Reliable Evidence Required  CSW Must Make Exigency Determination Based On All Information Known At The Time  Don’t Delay! – Please note: CSW cannot create exigency by waiting until the “last minute” to seek a removal order. As soon as a determination is made that the child should be removed, CSW must begin warrant process (e.g.: can’t wait until child being released from hospital to find exigency, if CSW determines removal is going to be necessary, CSW should immediately begin warrant process).
  42. 42. 4242 Specific & Reliable Evidence Is Required A CSW can only rely on  “specific and articulable evidence” when determining if there are exigent circumstances to act without a Warrant/Order. OF PARTICULAR IMPORTANCE IS THE RELIABILITY OF THE EVIDENCE.
  43. 43. 4343 Anonymous Callers: Corroboration Required  Information from an anonymous caller/unreliable source,  without corroboration,  cannot, by itself, constitute exigent circumstances. In these situations, the CSW must conduct a further investigation to corroborate that the report of suspected child abuse or neglect is reliable to support a finding of exigent circumstances.
  44. 44. 4444 Anonymous Callers: Corroboration Required  Information will be considered factual and based upon personal knowledge if it is so detailed that the inference can be drawn that the informant must have personal knowledge.  Such as, details given regarding: layout of a residence; acts that took place, etc.  Unverified statements can be deemed true if: a substantial portion of the statements have been verified – such as names of some/all people who reside in the home, address, description or house. PRACTICE TIP:  Did the anonymous source give detailed and specific information that only a person with personal knowledge could give?
  45. 45. 4545 Anonymous Callers PRACTICE TIP: Can CSW independently verify some of the information provided by a Caller as being true?  The Caller’s description of the residence, occupants, or scene can be independently verified, as well as the address.  Similar information from 2 untested informants can be deemed credible.  Check CACI, CLETS, and WCMIS to confirm names, addresses, dates of birth, and to look for similar conduct described by the caller.  Interview neighbors, relatives, and other witnesses.
  46. 46. 4646 WHAT DOES THE CSW KNOW AT THE TIME?  Whether circumstances are “exigent” is a determination that must be made based on all of the information known at the moment the CSW decides to act.
  47. 47. 4747 CAUTION: SERIOUS Does Not Always = Exigent The type of harm to the child does not, by itself, create exigent circumstances. EXAMPLE  A referral alleging the rape of a child, does not necessarily mean that there are exigent circumstances justifying the removal of a child or the siblings.  If there is time to get a warrant before the child or siblings will be harmed, the risk of the harm cannot be deemed immediate or imminent, despite the type of allegation. * See Mabe v. San Bernardino County, Dept. of Public Social Services (2001) 237 F.3d 1101
  48. 48. 4848 Remember: Imminent Risk Means Take Immediate Action!  If CSW determines there IS an immediate threat of serious physical injury,  Take action immediately.  Do not leave and go back at a later date!!  If the CSW has questions, consult with SCSW from the location via cell phone.  If No immediate threat of serious physical injury,  CSW must either have:  Consent or  Go to Court to get a Warrant or Order.
  49. 49. 4949 DELAYS NEGATE CLAIMS OF IMMEDIATE HARM Any delay in response time may weaken a claim of exigent circumstances Unless:  Newly discovered information creates NEW exigent circumstances. Delays include waiting to act until a TDM is conducted or after a Safety Plan has been implemented. Another way to think about this is: Imminent Circumstances require an Immediate Response.
  50. 50. 5050 DELAYS NEGATE CLAIMS OF IMMEDIATE HARM EXAMPLE:  A CSW receives a 5-Day referral:  Even if the CSW believes the child is at risk of immediate harm when reviewing the referral, the  Initial decision to delay the investigation for 5 days,  May necessitate that the CSW get a Warrant to enter the home  If the CSW is refused entry when first responding to the referral on the 5th day,  Unless new facts and/or circumstances support a finding of exigent circumstances on the 5th day.  Child’s cries of pain from within, etc.
  51. 51. 5151 Remember: Removal Based Upon EXIGENCY: ASK  1. “Do I believe that this CHILD is described by WIC § 300?  2. “Do I believe this CHILD is:  at risk of serious physical harm or sexual abuse,  in need of medical care for a serious medical condition, or,  in an environment that poses a threat to their health or safety?”  3. “Do I need to act immediately because I believe the Child will be seriously physically harmed in the time it would take me to prepare, obtain, and execute a warrant/court order, which could take 3-6 hours depending upon the circumstances?” * If the answer is YES to all three questions, then EXIGENT CIRCUMSTANCES likely exist.
  52. 52. 5252 DOCUMENTATION IS KEY A CSW must always be sure to detail in the Contacts on CWS/CMS the basis for any actions. Document! Document! Document!  Was Consent given?  If so, how?  If not, were there Exigent Circumstances?  Describe in detail.  Did the CSW obtain a Court Order?  Be prepared to document that, too.
  53. 53. 535353 “HOSPITAL HOLD” = A Removal A CSW detains a child from a Parent/Guardian’s custody whenever: 1. CSW places a hospital hold on a child, 2. CSW asks the hospital to delay or prevent a Child’s release from the hospital so that the CSW can do any of the following:  Interview child/parent/guardian; and/or limit visits with a child; and/or take a child into protective custody before child is released from the hospital. LEGAL REQUIREMENTS: In order to place a hold on a child in the hospital the CSW must have:  Consent,  Exigency, or  Warrant/Court Order See DCFS Policy 0300-303.06/Hospital Holds
  54. 54. Hospital Holds and “Pos Tox” Babies  An infant prenatally exposed to drugs and/or alcohol should trigger a risk assessment  Do not automatically place a hospital hold on the infant  If, after conducting the risk assessment, it is determined that the infant should be detained from the parents, the CSW may only place a hospital hold if there is  A removal order or  Consent or  Exigent circumstances  Not every drug exposed infant is at immediate risk of harm just because the infant and/or mother tested positive for illicit dugs  Check for other factors indicating immediate risk  The demeanor or actions of the parents at the hospital  Threats made by the parents or relatives
  55. 55. 55 Samantha Facts:  Baby Samantha was born on 12/9/2012.  Parents were homeless and unable to provide care for Samantha.  Mother has a 10 year history of using Meth, relapsing most recently less than one year ago.  Mother has been involved with DCFS for 5 years and has failed to reunify with her two other children.  Mother has been in an ongoing domestic violence relationship with father.  A VFR was signed with the parents; Samantha was placed with her MGP’s. Parents agreed to random testing, DV counseling, parenting and FP services.  Mother has recently missed 4 tests since12/2012; she recently tested positive for Meth.  Father has not been testing or participating in any services.  The MGP’s report the parents fight when they visit Samantha and they have ended visits early on 3 occasions.  Mother and father were involved in a physical altercation yesterday and mother sustained injuries; the police were called. Mother has moved out and is living with a friend; she said she moved out because she wants to reunify with Samantha.
  56. 56. 56 What would you do if this was your case? Reminder: If you decide to take the child into protective custody, the rule is DCFS must have a court order to remove unless there is an exception. • Is there consent to remove? • Is there exigency?
  57. 57. 57 Apply the Exigency Analysis to Samantha’s Case:  1. “Do I believe that this CHILD is described by WIC 300?  2. “Do I believe this CHILD is:  at risk of serious physical harm or sexual abuse,  in need of medical care for a serious medical condition, or,  in an environment that poses a threat to Child’s health or safety?”  3. “Do I need to act immediately because I believe the Child will be seriously physically harmed in the time it would take me to prepare, obtain, and execute a warrant/court order, which could take 3-6 hours depending upon the circumstances?”  If the answer is YES to all three questions, then EXIGENT CIRCUMSTANCES likely exist.
  58. 58. SCHOOL INTERVIEWS (See DCFS Policy 0070-506.11)
  59. 59. 5959 SCHOOL INTERVIEWS California Statutory Law NO WARRANT OR COURT ORDER REQUIRED Penal Code § 11174.3 authorizes a CSW to interview a child at school for an abuse or neglect investigation  During school hours  On school premises, and  At the child’s option:  in private, or with a school employee selected by the child to be present to lend support.
  60. 60. 606060 SCHOOL INTERVIEWS Federal Case Law Ninth Circuit Court of Appeals  Although California statutory law specifically authorizes a CSW to do a School Interview without exigency, consent, or a court order,  in 2009, the Court in the 9th Circuit case of Green v. Camreta said that every school interview requires:  Consent,  Exigency, or a  Warrant/Court Order
  61. 61. 61 SCHOOL INTERVIEWS Federal Case Law United States Supreme Court The US Supreme Court vacated that portion of the 9th Circuit’s opinion in Green v. Camreta, which stated  CSWs and officers must obtain a warrant to interview at school when they don’t have parental consent or exigency.  However, vacating that portion of the 9th Circuit opinion does not mean that the Supreme Court found the 9th Circuit was wrong -- it just means that part of the 9th Circuit’s ruling is not in effect anymore.  It also means we now have a good idea about how the 9th Circuit will rule in similar cases in the future.
  62. 62. What This Means for CSWs Who Want to Conduct School Interviews During DCFS Investigations ?  CSWs should follow the most current DCFS Policy (0070-506.11 and 0070-570.10) regarding obtaining court orders to interview at school.  Summary:  Get consent from Parent/Guardian or child over 12, when safe and appropriate to do so; or  Consider whether you have exigency to conduct the interview; or  Conduct a short interview (under 30 minutes) of the child when appropriate; or  Obtain court order.  Consult with your SCSW and/or the Warrant Desk if you have questions.
  63. 63. 63 School Interviews: PRACTICE TIPS regarding CONSENT IS IT SAFE/APPROPRIATE TO GET CONSENT? – review DCFS policy to determine.  Obtain Consent to interview at school from  a Non-offending Parent/Guardian; or  A Child, if 12 yrs. or older and competent  Try to get consent to interview away from the school (at the home or other location that a parent/legal guardian agrees to) because Green only applies to interviews at school. IF NOT, DO YOU HAVE EXIGENCY TO INTERVIEW?
  64. 64. School Interviews: PRACTICE TIPS regarding EXIGENCY IF NO CONSENT, DO YOU HAVE EXIGENCY? CONDUCT YOUR 2-STEP ANALYSIS  FIRST: Do the allegations contain the type of harm/risk that a CSW may act upon without a court order?  SECOND: If it is the type of harm/risk a CSW may act upon without a court order, is that harm or risk to the child determined to be “immediate?” IF NOT, CONSIDER CONDUCTING A BRIEF INTERVIEW
  65. 65. School Interviews : PRACTICE TIPS Brief Interview IF NO CONSENT OR EXIGENCY, TRY TO CONDUCT A BRIEF INTERVIEW WITH THE CHILD AT SCHOOL:  Limit the interview to under 30 minutes  No interviews without an order/consent if law enforcement is present at the school, and/or actively investigating the referral*  Child must understand that the interview is voluntary IF NO CONSENT OR EXIGENCY, AND A BRIEF INTERVIEW ISN’T POSSIBLE— GET A COURT ORDER. • * “Active Investigation” means the activities of an agency in response to a report of known or suspected child abuse. Activities of an agency include the following: assessing the nature and seriousness of the known or suspected abuse; conducting interviews of the victim(s) and any known suspect(s) and witness(es) when appropriate and/or available; gathering and preserving evidence; determining whether the incident is substantiated, inconclusive, or unfounded; and preparing a report that will be retained in the files of the investigating agency.
  66. 66. SDM Safety Plans
  67. 67. SDM Safety Plans During a child abuse investigation  Mutually agreed upon voluntary plan to ensure child safety during the investigation  There are reasonable grounds to believe the child was abused when the plan is entered into  Child remains in the family home and the offending parent/guardian agrees to leave for a short period of time (no longer than 7 days) or  Parents/guardians agree to have the child temporarily (no longer than 7 days) stay with a relative or family friend or  Parents/guardians agree to have the offending parent or guardian forgo unsupervised visitation and contact (no longer than 7 days)  Procedural Guide 0070-548.25
  68. 68. SDM Safety Plans are Voluntary  Safety Plans Are Voluntary  Parents and legal guardians should be told  the SDM safety plan agreement is voluntary, and  if they do not agree to the SDM safety plan, they are free to reject the SDM safety plan.  They should also be told that their failure to agree to the SDM safety plan or to carry out the plan may  result in a reassessment of child safety and continuing to have the child remain in the home, and  a possible referral to the juvenile court to open a case or DCFS may try and obtain a warrant/removal order to remove the child from the family home.
  69. 69. Parents are Free to Rescind at Anytime  Because SDM safety plans are voluntary  The parents or guardians are free to rescind the agreement and either  Return to the family home or  Have the child returned or  Resume visitation  As soon as possible  After rescission (or violation of the plan)  There is no waiting period  The CSW must do another assessment for child safety which includes an assessment for removal  However, no removal should take place without either consent, exigent circumstances or a removal order
  70. 70. Do not Force Parent or Guardian to Agree to a SDM Safety Plan  Do not Force a Parent or Guardian to Agree to a SDM safety Plan  If a parent or legal guardian is unwilling to agree to a SDM Safety Plan,  under no circumstances are CSWs permitted to use the threat of removing the children to get the parent or legal guardian to agree.  A CSW must not threaten the parent  the CSW can not say that, if the parent or legal guardian refuses to agree to the SDM safety plan, the CSW will remove their child from the home.  If a parent or guardian writes on the SDM safety plan or states that they are signing the plan under duress, or coercion, or that they do not agree, this is not a valid SDM safety plan.  Nor must the CSW state that he/she will ”get” a warrant/removal order to remove the child from the family home"  that raises an implication that the obtaining of a warrant is forgone conclusion.
  71. 71. Who Must Agree to the Safety Plan? All of the parents who have contact with the child must agree to the terms of the safety plan  If the SDM safety plan asks for  the child to leave the home, or  the offending parent or guardian leave the home, or  have the offending parent or guardian forgo unsupervised visitation and contact  it is important to have all of the parents or legal guardians agree to the SDM safety plan.
  72. 72. Visual Inspections, Medical Exams & Remedial Treatment
  73. 73. 7373 Visual Inspections, Medical Exams & Remedial Treatment  An investigation may require a CSW to:  Conduct a physical inspection of a child, and/or  Obtain an investigatory/evidentiary medical examination by a doctor or other expert to help determine if abuse or neglect occurred.  Remedial medical treatment may also be necessary for child(ren) in DCFS care upon detention:  Remedial, follow-up, and necessary medical treatment upon physical detention and before the detention hearing
  74. 74. Visual Inspections, Medical Exams & Remedial Treatment REMEMBER: The same rule applies to visual inspections, investigative exams, and remedial medical treatment. The CSW must have:  CONSENT,  EXIGENCY, or  WARRANT/COURT ORDER before conducting a visual body inspection, and/or referring the child for an exam and/or remedial treatment.  EXCEPTIONEXCEPTION – initial medical and mental health screenings for newly detained children
  75. 75. 7575 MEDICAL EXAMS & TREATMENT Are Prohibited Unless There Is:  Parental Consent;  Consent by Child age 12 or Older, applicable only to sexual abuse exams and mental health treatment;  (Family Code §§ 6920 to 6929)  Warrant/Court Order for  Search Warrant for Investigatory/Evidentiary Medical or Sexual Abuse Exam; or  Order for Remedial Medical/Dental Treatment  Exigent Circumstances which demonstrate:  (a) medical emergency (urgent problem requiring immediate attention); or  (b) examination is necessary to preserve evidence (e.g., sexual assault occurring within the previous 72 hours).
  76. 76. 76 Limited Screenings for Newly Detained Children  DCFS may authorize, and health care providers may perform, an initial medical/mental health screen of newly detained children, under the following conditions:  The screen will be minimally intrusive and narrowly tailored/limited in scope without infringing on the rights of the child and his/her parent/guardian(s).  Make an attempt to obtain parental consent prior to referring the child for the screening.  Purpose:  to ensure a child's physical and psychological health pending the initial detention hearing, and to reduce the risk of exposure to communicable diseases by those who come into contact with these children during this time frame. See DCFS Policy 0600-500.00/Utilization of Medical HUBs
  77. 77. 77 Scope of Limited Screenings for Newly Detained Children:  Initial Medical Screening May Include:  Visual inspection of clothed child; only minor clothing re-adjustment is permissible;  An examination of the child's temperature, height, weight, pulse, blood pressure, appearance, gait, head and neck, lymph nodes, chest, abdomen;  A preliminary dental and visual acuity screening, and a gross hearing test;  Fetal Alcohol Syndrome screen;  An evaluation for urgent medical conditions, to include:  infections and communicable diseases  preexisting medical conditions requiring monitoring and/or medications  Initial Medical Screening Should NOT Include:  Removal of clothing, including but not limited to genital inspection; invasive laboratory testing; imaging studies; photographing of the child, or any routine follow-up medical care that is not within the scope of a medical screen  A court order will be required to conduct a more thorough invasive examination.
  78. 78. 78 Results of Limited Screenings for Newly Detained Children:  Once a screening is conducted, any determination that further medical care or mental health treatment is necessary must be addressed accordingly:  In non-emergent situations where the health care provider believes that:  Remedial medical care or mental health treatment is needed before the initial detention hearing because treatment CANNOT be safely delayed until the child's case comes before the court (within three to five days), and consent from the parent is lacking,  DCFS may seek an pre-detention hearing order authorizing the further care.  Remedial medical care or mental health treatment may wait until after the initial detention hearing as such care/treatment can safely be delayed until the child's case comes before the court (within three to five days),  DCFS may ask for an order authorizing the recommended treatment at the initial detention hearing.  In emergency situations, medical care will be provided without a court order, in accordance with State and federal law. - See DCFS Policy 0600-501.10/Medical Consent
  79. 79. 79 Remedial/Follow-up Care Prior to the Detention Hearing:  If the limited screening results in a recommendation for further  Treatment, laboratory testing (including x-rays), diagnostic testing, unclothed physical exam, administration of medication, surgical diagnosis/treatment, or dental care (including x-rays); and  The above treatment is recommended or necessary before the initial detention hearing (which can be 3-5 days away); and  Waiting for the initial detention hearing would not be advisable in accordance with sound medical, dental or mental health practice.  The CSW may apply for an ex-parte order for medical or dental care through the Warrant Desk and prior to the initial detention hearing. (See WIC 369(a))
  80. 80. 80 Exception: Emergency Medical Care Prior to Detention Hearing  DCFS may authorize emergency medical, surgical, or dental care without the need of a court order, so long as:  The child is otherwise under the care, custody or control of DCFS via temporary custody (WIC § 369(a) [child detained]), a WIC § 300 petition has been filed (WIC § 369(b)), or current dependency (WIC § 369(c))  It made a reasonable effort to locate the parent (WIC § 369(d))  Must be a true emergency – immediate diagnosis and treatment which, if not performed, would lead to serious death or disability; or immediate treatment for the alleviation of severe pain  (See also Business and Professions Code § 2397.)
  81. 81. 81 Exception – Exam or Treatment of Victims of Sexual Assault or Rape  If the child is  a victim of sexual assault (any age); or  a victim of rape and is age 12 or older  The child may consent to an exam and/or treatment.  Consent of the parent for the child is not needed. (See Family Code §§ 6927 & 6928; Penal Code § 13823.11.)
  82. 82. 828282 MEDICAL EXAMS & TREATMENT: Parent’s Right To Be Present Absent consent, a CSW cannot exclude a parent from the examination room or entirely from the medical facility unless:  there is some “valid reason” for exclusion, or  an emergency requiring immediate medical attention.  CSW should consult with their SCSW  If CSW believes there is a valid reason,  such as the Child is requesting it;  or the Parent/Guardian is exhibiting behavior at the medical facility indicating s/he will likely disrupt the exam  And wants to exclude the Parent/Guardian.
  83. 83. Warrant/Removal Order Process and Procedures
  84. 84. 84 The Warrant Desk, Warrant Liaisons, and Warrant Consult  There is a warrant consulting process with the DCFS CSWs/SCSWs/ARAs and warrant liaisons utilizing the Warrant Tracking System.  The Warrant Tracking System is a web- based system that tracks the status of warrant applications from the time of the warrant application’s initial submission through warrant application closure.
  85. 85. 8585 Where to Begin the Consultation Process  Complete your assessment of the situation.  If you determine that further investigation is needed and you want a search warrant or school interview order or a warrant for a forensic examination, consult with the SCSW. -If a warrant or school interview order is deemed appropriate, and you are ready to proceed with requesting a search warrant or school interview order or a warrant for a forensic examination, create a Warrant Consultation Request in CWS/CMS.
  86. 86. 86 Where to Begin the Consultation Process - Continued  If you determine that detention is necessary to ensure the safety of the child and you do not have consent or exigent circumstances to remove the child, consult with the SCSW. -If a removal order is deemed appropriate, and you are ready to proceed with requesting a removal order, create a Warrant Consultation Request in CWS/CMS.  If a medical or mental health screen results in a determination that additional treatment is necessary, and consent has not been obtained after a child has been detained but before the detention hearing is held, you will need to seek a Remedial Care Order through the warrant desk. -The health care provider will complete a simple form to outline any recommended treatment and the advisable timeframe in which to provide the treatment.
  87. 87. 87 Where to Begin the Consultation Process - Continued  For all order/warrant types, except Remedial Medical Care Orders, create a Warrant Consultation Request in CWS/CMS, under LA County Forms. You must provide a contact number and identify the type of warrant you are requesting.  Liaisons may answer questions re: what type of warrant/order may be best for your case.  The Warrant Consultation Request will be electronically submitted to the Warrant Tracking System, which is monitored by the warrant desk liaisons. Please ensure that all case information is accurate on CWS/CMS prior to submitting a Warrant Consultation Request. Inaccurate child and family information may result in a delay in processing the warrant.  If you are unable to create a Warrant Consultation Request in CWS/CMS, and the child has already been detained and you are seeking an order for Remedial Medical Care, please contact the Warrant Desk at (323) 881-1303 or (213) 639-4500 (after hours, holidays and weekends).
  88. 88. 8888 WARRANT DESK CONTACT INFORMATION Monday-Friday 8:00 am- 5:00 pm IDC Warrant Desk 323.881.1303 After 5:00pm, Holidays & Weekends ERCP Warrant Desk 213.639.4500 Also: the CSW, SCSW and ARA may log into the Automated Warrant Tracking system at any time to check the status of the Warrant Consultation. The Automated Warrant Tracking System is located at http://dcfsaspnet/warrant/Logon.aspx.
  89. 89. 89 Warrant Liaison Response To Consultation Requests for Warrants/Removal Orders  After you generate the consult in CWS/CMS, a Warrant Liaison will call you at your provided telephone number to complete the Warrant Consultation.  You should have all relevant case information available, including but not limited to:  Details of your current investigation (parents/guardians, children, referral allegations, interviews, etc.)  Compliance with prior/current voluntary and/or juvenile court services  Reasonable efforts to prevent removal or basis to forgo such efforts  Special requests, such as night service (a warrant may not be served between 10pm and 7am unless specifically requested in the warrant application and approved by the judge) or an investigative forensic medical/sexual abuse examination along with a removal order request  The removal order judicial review time frame - whether DCFS will request that the removal order will be reviewed by a judge on an expedited basis, regular basis, or after-hours basis
  90. 90. 90 Removal Order Judicial Review Time Frames  DCFS must determine how quickly you would like a court ruling on the request.  The juvenile court has developed three types of review periods depending on the urgency of the case. The review periods are as follows: 1. Regular – Court will rule on the request by 5:00 pm the day after the request is filed with the court. (Most requests are submitted for regular review.) 2. Expedited – CSW has good cause to request a ruling the same day the request is submitted, and intends to serve the removal order (or at least make one attempt) the same day it is granted.  Examples: hospital hold needed to protect child; visitation exchanges will take place before a regular removal order can be ruled upon; parent or child will soon be released or discharged from custody or hospital; offending parent will be returning to the home soon; weekend/holiday visitation exchange must be stopped. 3. After hours – DCFS is requesting a ruling on the removal order on a weekend, holiday, or during non-court hours.  Examples: same as expedited and the matter cannot wait until 4:00 pm of the next available court day for a ruling.
  91. 91. 91 Expedited Review Requests  It should be noted that if a CSW gives a reason for expedited review that the court believes to be far reaching or exaggerated, the CSW and SCSW may be asked to come to court to explain his/her reasons for making the request for expedited ruling.  Examples of insufficient reasons for expedited review are: -CSW is going on vacation or has an RDO. The reason this is not sufficient is because any CSW or SCSW may serve the removal order; -a TDM is scheduled. However, this may be sufficient if the TDM is the only time CSW is going to be able to locate the child(ren) or serve the removal order.
  92. 92. 9292 REQUESTS TO ENTER A HOME or INTERVIEW CHILD AT SCHOOL – “PROBABLE CAUSE” TO OBTAIN A COURT ORDER, CSW WILL HAVE TO PROVIDE EVIDENCE TO THE COURT THAT IS SUFFICIENT TO ESTABLISH A “FAIR PROBABILITY” THAT: Child is now located or resides at the home to be searched (for search warrant); AND Evidence of child abuse and neglect will be found (for search warrant and school interview).
  93. 93. 939393 Fair Probability  Is more than a hunch  Less than an absolute certainty
  94. 94. 949494 REQUESTS TO REMOVE A CHILD “PROBABLE CAUSE” CSW WILL HAVE TO PROVIDE FACTS SUFFICIENT TO ESTABLISH A “FAIR PROBABILITY” THAT:  Child is now located or resides at the home to be searched;  Is described within WIC 300;  Should be temporarily removed due to one or more of the following  Child requires immediate medical care.  Child is in danger of physical or sexual abuse.  Child’s physical environment poses a threat to the child’s health or safety.  Child is suffering severe emotional abuse.  Child has no parent, guardian, or responsible relative; or that person is not willing to provide care.  AND there are no reasonable means Child can be protected without removal.
  95. 95. 9595 Statement Of Cause MUST Include 1. Background and Experience of CSW. 2. Summary Statement of Concern and Relief Sought. ALSO: Why this level of intrusion is appropriate. ■ FOR REMOVAL ORDER REQUESTS: ■ CSW must state what Reasonable Services were provided or considered. 3. Prior History: if any, as is relevant to the current investigation. 4. Statement of Investigation: Who, What, When, Where, Why, How. 5. Description of the Children to be removed. 6. Description of the Residence where the Children are located. 7. Conclusion.
  96. 96. 969696 Statement of Cause EVIDENCE MUST BE SPECIFIC  A Conclusory Statement Alone Will Not Justify A Warrant Or Court Order:  Statements like:  “Child was molested;" “Home is dirty;” or “He uses drugs,“  without more, will not support a request for a warrant or other court order.  There must be specific facts to support the conclusions. This shows that the witness/informant has personal knowledge and is reliable and/or credible.
  97. 97. 979797 Statement of Cause Practice Tips: HEARSAY:  Statement Of Cause can be based upon hearsay, if information relied upon from a hearsay informant:  can be shown to be credible  factual and/or detailed, not conclusory  and the informant is reliable  police, citizen informant, witness, tested [past reliable] informant.
  98. 98. Remedial Medical Care or Mental Health Treatment Application Process  Once a CSW, upon consultation with the health care provider and an SCSW, makes a determination that remedial care should be sought  The CSW should make reasonable efforts to notify the parent, guardian or other appropriate person.  If the parent, guardian or other appropriate person consents, such consent should be noted in the case file  If the parent or guardian is unwilling or unable to consent, the CSW, with the assistance of a warrant liaison and County Counsel, will complete an application packet for a court order authorizing the requested remedial care/treatment.  The parent/s lack of consent such should be noted in the case file and on the application for a court order.
  99. 99. Remedial Medical Care or Mental Health Treatment Application Process  An application packet will consist of:  An application for medical, mental health, or dental care completed and signed by the CSW; and  A “Recommendation of Physical for Medical, Mental Health, Surgical, Dental or Other Remedial Care” completed by the health care provider who examined the minor -The form will indicate, among other things, the scope of the treatment requested, the time frame in which it should be provided, and the medical ramifications if the recommended care is not provided in the time frame prescribed. -Contact information should be included in the even that the hearing officer requires further information.  No application will be considered complete without an attached recommendation from a health care provider.
  100. 100. 100100 SERVICE OF THE ORDER SEARCH WARRANTS CAN ONLY BE SERVED BY LAW ENFORCEMENT  Must be served by officers within 10 Calendar Days.  Is only good for 1 attempt—then need another warrant!  Can only be served between 7 a.m. to 10 p.m.,  Unless Judge authorized a “Night Time Warrant.” CSW Must:  Call Watch Commander Before Going To Station  Bring a minimum of 4 Copies of the Warrant Order  Also bring the Original Signed Warrant Order  Note: CSW’s Statement of Cause Affidavit is not served, but will be provided to parties at the detention hearing.
  101. 101. 101101 SERVICE OF THE ORDER OTHER COURT ORDERS CAN BE SERVED BY: ANY CSW/SCSW OR Law Enforcement  School Interview Order  Medical Exam Order  Removal Order for Child REMOVAL ORDERS: • Good for multiple service attempts within 10 Calendar Days of date issued. • Can only be served between 7 a.m. to 10 p.m., unless Judge authorized a “Night Time Warrant.” • Parent/Guardian is served with only the granted warrant, not the CSW’s Statement of Cause Affidavit/Declaration. However, all parties get a copy of the SOC/declaration at the Court detention hearing.
  102. 102. 102102102 Alternative Practices: Gaining Access to the Child Alternatives:  USE EXISTING COURT ORDERS: ■ Check Minute Orders to see if there are any existing court orders that permit the CSW to have access to the home or the children. ■ Consult with the warrant desk or trial county counsel before proceeding based upon a minute order.  CONTACT LAW ENFORCEMENT: ■ To discuss assistance where a parent is on probation/parole with a search condition. ■ To conduct Conjoint Investigations.
  103. 103. 103103103 THE END

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