OPINION:
A front door is many things. When opened, it welcomes friends, family, laughter, and joy. When closed, it guards the threshold between the safety of home and the outside world. It signals security. At least, it should. But for one Texas homeschool family, this recently came under threat.
On February 27th, the family received notice of a court order authorizing a Texas Department of Family and Protective Services (DFPS) investigator to search their home and to transport all five children away from the home for interviews and physical and psychological examinations.
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The reason for this order? Nearly two months earlier, just before Christmas, the family’s 8-year-old son had walked to the neighborhood dollar store without permission.
On February 29th, Home School Legal Defense Association filed an emergency appeal to reverse the court order, and on March 5th, the appellate court granted a motion to temporarily block enforcement of the order while the court considered our appeal. More details on this case can be found on HSLDA’s website.
In the early days of homeschooling, back in the 80s and 90s, when homeschooling was thought to be illegal in many states and disfavored in most of the rest, an all-too common report to Child Protective Services involved children who did not go to public school.
When the CPS investigator came to the home to investigate, two common demands were made: first, to come into the home to look at the living conditions, bedrooms, and to ensure adequate food was present; second, to interview all of the kids privately, apart from the parents.
Because homeschooling parents typically homeschool their homeschooled children in — you guessed it — their home, they would call Home School Legal Defense Association to help them navigate this distressing encounter. This is how homeschooling advocates became frequent practitioners in 4th Amendment law. Even though HSLDA and others have pursued cases that have set precedents in several state and federal courts holding that the fourth amendment applies in CPS investigations — a view not always shared by CPS agencies — cases still arise requiring our assistance.
In my 23-year career, I’ve worked on dozens of these cases.
They begin the same. Someone reports possible child abuse or neglect, a case is opened, and an investigator is dispatched. Often, the investigator determines that the children are safe and the case is closed.
But this does not always happen. Sometimes, even when it is clear that no abuse or neglect is occurring, investigations can escalate to coercion, threats and court orders because investigators wrongly believe they must “complete the investigation.” HSLDA has seen this many times over the years, including a more recent case in Kentucky, or some of our more famous cases in California and North Carolina.
The circumstances in North Carolina were strikingly similar to those of our recent Texas case. In North Carolina, during the family’s morning routine, an undressed child slipped out the front door unattended in pursuit of the family cat and an anonymous report was made to CPS by a passing driver. We appealed the case all the way to the North Carolina Supreme Court, which ruled in favor of the family, stating “On this record, we have a report of a circumstance that probably happens repeatedly across our state, where a toddler slips out of a house without the awareness of the parent or care giver — no matter how conscientious or diligent the parent or care giver may be. While no one wants that to happen, such a lapse does not in and of itself constitute ‘neglect’ under [North Carolina statutes].”
The work of CPS investigators is vital in discovering and preventing child abuse and neglect. But there are rules that they and juvenile court judges are supposed to follow to prevent the investigations they pursue from doing more harm to children than good.
In some cases, rapid entry is necessary and warranted for the protection of children, but in all of these stories, the investigator, without exigent circumstance (i.e. a true emergency) and probable cause, forced or coerced entry into the home and proceeded with invasive examinations, violating both privacy and dignity.
Thankfully for the family in Texas, it did not go that far. Two days after the appellate court granted our request to delay enforcement of the order, DFPS dismissed the case, the same case in which it had claimed that circumstances were so dire it could not give the family notice and opportunity to be heard so the trial court could hear both sides.
As a father myself, I feel the drive to protect children from harm. It is innate, fierce, and consuming. It calls us to act, and it is why child maltreatment laws and CPS exist. But if our zeal leads us to enter homes without lawful authority, separate children from their parents, and invade children’s privacy when there is no good reason to do so, we can, in our efforts to help, cause great harm. Years, even decades later, the children and parents in these stories still struggle with the emotional and psychological trauma caused by these events.
In the judge’s analysis for one of HSLDA’s earliest successful cases in California, the United States Court of Appeals for the Ninth Circuit summarized this issue well: “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.”
CPS investigators play an important role in protecting children from the harm that abuse at the hands of a caregiver causes. But they must take care because children also deserve to feel safe in their own homes. The splinters from a shattered front door cut deep, and whether it’s one wound or the other just changes the shape of the scar that is left behind.
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Since joining HSLDA to lead the litigation team in 2001, Jim Mason has represented homeschooling families in a wide range of challenging situations and has set precedents that have expanded freedom for the homeschool community. Under Jim’s leadership, HSLDA’s 4th Amendment litigation work has changed the way three states (North Carolina, Pennsylvania, and New Mexico) approach social services investigations. Jim became the president of HSLDA in 2022 after serving as vice president of litigation and development for seven years.
HSLDA is a non-profit advocacy organization that makes homeschooling possible by protecting homeschooling families and equipping them to provide the best educational experience for their children. We have been trusted for over 40 years to care for homeschooling families as we safeguard their freedom and secure the future of home education.
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