http://www.sfgate.com/cgi-bin/article.c ... 118333.DTL
Ruling hinders social workers
Investigation limits for emotional abuse
Chuck Squatriglia, Chronicle Staff Writer
Monday, June 10, 2002
A federal court ruling that a social worker broke the law when she entered a Berkeley home without a warrant and took away two boys she feared were emotionally abused highlights a growing debate over when and how authorities can intervene when they suspect such harm.
In a ruling last week, U.S. Magistrate Bernard Zimmerman said the U.S. Constitution and California law allow social workers to enter a home without a warrant only if there is an imminent threat of physical -- but not mental -- abuse to a child.
Child welfare experts said the law doesn't recognize mounting evidence that emotional abuse is as detrimental to children as physical abuse, nor does it consider the obligation of social workers to move quickly when investigating such allegations.
But some family law attorneys praised the ruling as reaffirmation of the sanctity of the home and parental rights at a time when social workers increasingly intervene in matters that are none of their concern.
The issue has grown so thorny that it has come before the Child Welfare Services System Stakeholders Group, a state panel charged with improving California's child welfare bureaucracy.
"The more we learn, the more likely it is that the definition of what constitutes an immediate threat will change" to include emotional harm, said Andrew Ross, a spokesman for the California Department of Social Services. "It's something that's being discussed."
The question of when social workers can enter homes uninvited has been litigated several times in California and other states in recent years.
A New York woman recently filed a $2 million federal lawsuit against social workers in Oswego County, claiming they illegally removed her four children. A case questioning the authority of social workers to enter a home is pending before North Carolina's supreme court, and a federal judge in Utah dismissed a similar suit in September.
In a case from Yolo County, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled in 1999 that constitutional protections against unreasonable search and seizure apply to social workers as well as to police.
The ruling prompted California lawmakers to require social workers to obtain a warrant before entering a home uninvited unless there is "immediate danger" of physical or sexual abuse. The court bolstered its decision in a ruling last year in a San Bernardino County case.
But the law does not define "immediate danger." Such definitions are left to Child Protective Services agencies in each of California's 58 counties.
That apparently is where Alameda County social worker Carolyn Black ran afoul of the law when she paid a visit to Patricia Moodian's Berkeley home on April 20, 2000.
County officials and attorneys for Moodian and her two sons declined to comment, citing the confidentiality of child welfare proceedings. But court documents show that a San Francisco Superior Court judge hearing a custody dispute between Moodian and the boys' father expressed concern for the youngsters' emotional well-being. She asked Alameda County authorities to investigate.
Black did not have a warrant when she arrived with police, and Moodian reluctantly allowed her into the house. After observing Moodian's behavior and interviewing her children, Black concluded the children were in imminent danger of emotional harm and placed them in foster care for almost four months.
Zimmerman ruled that Black violated the constitutional rights of Moodian and her children, described by attorneys as "middleschool-aged," when she entered the house without a warrant because there were no allegations of physical abuse. The ruling sets the stage for a trial, scheduled to begin Aug. 19, during which a jury will decide whether the county should pay damages to the family.
Alameda County Counsel Richard Winnie declined to discuss specifics of the case, but said it raises difficult issues about a welfare agency's ability to protect children from emotional abuse.
"We are working in an area where there is a responsibility to protect children but not absolute clarity in how to proceed," he said.
Social service experts agreed.
"It will make it harder for (social workers) to do their jobs if there are no physical signs of abuse," said Lahne Matas-Curry, a spokeswoman for the National Association of Social Workers. "It's a fine line, and there must be some way for the law to allow social workers to do their job."
But some family law attorneys said the ruling will keep social workers from overstepping their authority for fear of letting a child "slip through the cracks."
"They'd rather be more aggressive than less in their mission, and the public seems willing to go along with that," said Jan Saalfield, a Sausalito attorney who specializes in child welfare cases.
Many of the allegations of emotional abuse social workers investigate stem from divorces and custody disputes, which are inherently stressful for children, Saalfield said.
Saalfield and others concede there are plenty of cases where children truly suffer emotional abuse and must be helped. But case workers have an obligation to respect parental rights and obey the law.
Child welfare authorities throughout the Bay Area said only on rare occasions do social workers have to seek a warrant to enter a house.
"I can only think of one case in the past several years, and we didn't prevail," said Danna Fabella, director of Children and Family Services in Contra Costa County. "We asked for the warrant and the judge did not agree and we didn't go any further."
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