Children’s Rights Initiative for Sharing Parents Equally

Detective Robert R. Surgenor (Retired)
Family Defense Network of Ohio

http://www.fdno.org/10_tips.html

In February of 2001, two social workers and two police officers approached the residence of a home educating family in Vermilion, Ohio, and indicated that they were investigating allegations of child neglect. The parents refused to let the officers into the home unless they possessed a warrant or court order. The social workers stated that they did not need a warrant. The police officers threatened to arrest the father for “Obstructing Official Business” unless they were allowed entry into the home. Faced with the threat of arrest, the officers were allowed entry. An inspection was made of the home, and the social workers and police officers left the premises without any further action taken. The parents filed a lawsuit in Federal Court, claiming that their Fourth Amendment rights had been violated. They were correct!

The Fourth Amendment 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Ohio law reflects this wording in Ohio Revised Code Section 2933.22.

In order for an officer of the court to enter your home against your will, be it a social worker or police officer, he or she must have a warrant in their hand when they step through the door. If anyone has evidence that you have committed a crime, that evidence must be presented to a judge, while under oath or affirmation, and the judge must decide whether that evidence contains enough “probable cause” for him or her to issue the warrant. The evidence presented to a judge must indicate that you have committed a crime.

During my twenty years as a police officer, if I already had enough evidence that a person was committing a crime in a home, I never attempted to enter the home without the warrant already in my hand. There were plenty of times I tried to bluff my way into a suspect’s house without a warrant, but only when I did not have enough evidence to charge the person with a crime. My attempts to be let into the home was for the purpose of building a case and collecting evidence once I was in the home that might convince a judge to give me the warrant I needed. Unlike the Vermilion officer, I never threatened to arrest the homeowner for “Obstructing Official Business” if he didn’t allow me to enter the home, but I used numerous tactics and techniques to convince that resident that it was in his best interest to cooperate with me.

In December of 2002, The United States District Court in Ohio ruled against the two social workers and two police officers in the Vermilion case. The Court stated: “Despite the defendant’s exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however benign or well-intentioned, are met by a closed door.” The Court also stated “The Fourth Amendment’s prohibition on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCFS employee, or any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency.” The court also ruled that the social workers and police officers were liable, and could be sued for their actions.

Below are several recommendations on how to handle a social worker or police officer at your door that is investigating allegations of child abuse or neglect.

1.) If possible, document the conversation with a video camera or audio tape recorder. If possible, conceal the camera or recorder so that the social worker or police officer is unaware of the taping. This type of recording on your own property is never illegal, no matter what you are told by the social worker or police officer.

2.) Identify the persons at your door. Write their names down or, if possible, obtain their business cards. In addition to the names of the police officers, obtain their badge number. If possible, ask for the name of the person’s immediate supervisor.

3.) Ask the social worker or police officer if they have a warrant or court order that authorizes them to enter your home against your will. If the social worker or officer insists that they do not need a warrant under the circumstances, provide them with a copy of the bulletin, “UNITED STATES DISTRICT COURT RULES AGAINST OHIO SOCIAL WORKERS AND POLICE OFFICERS,” (available on this web site). Advise the investigator or officer that you will be glad to cooperate and allow them to enter your home if they possess a warrant or court order signed by a judge or magistrate. Under certain conditions, called “exigent circumstances,” such as “hot pursuit” and “emergency,” officers are allowed to enter a home without a warrant, but these instances are few and far between. An example of “hot pursuit” would be an officer who observed a robbery pursuing the criminal to the front door of his house where he slammed the door. The officer can enter that home without a warrant. An emergency would involve the “immediate need” to rescue someone from serious harm. An officer hearing gunshots and a screaming woman would perceive an “emergency,” and would be justified in entering the home without a warrant. A social worker investigating allegations of child abuse or neglect would rarely be exempt from the warrant rule.

4.) The same rule applies whenever an officer of the court, be it a social worker, police officer, or deputy sheriff, wants you to do anything against your will. You cannot be made to “report to the office” of the social worker or to “bring your children in for an interview” without being served with a court order. Only a judge or magistrate, presented with evidence that you have committed a crime, can issue an order that you are obligated to obey.

5.) Ask the investigators the nature of the complaint against you. Ask them to give you the actual state statute number or local ordinance that you have alleged to have violated.

6) Always keep handy a copy of Ohio’s laws pertaining to parental authority and child abuse. A copy of those laws is also available on this web site. Read these laws and become familiar with them. On one occasion, a mother was being questioned at her front door by a police officer ignorant of the child abuse laws. The mother provided the officer with a copy of the law. The officer postponed his plan to arrest the mother, and later apologized for not being aware of the legal right of a parent to spank their children.

7.) If the social worker or police officer uses force to enter you home, DO NOT RESIST in any way. Even if the entry into your home is unwarranted, you cannot physically resist the officer. Even passive resistance (remaining seated when told by a police officer to stand) is cause for arrest. Simply advise the social worker or police officer that they do not have your permission to enter, and that if they continue entry into your home without your permission, you will pursue legal action against them.

8.) Record all of your telephone conversations with employees of the Department of Children’s Services and the police department. In Ohio, it is not necessary to inform other people involved on the telephone line that the conversation is being recorded as long as one person who is actively engaged in the conversation is aware that it is being recorded (See Ohio Revised Code Section 2933.52). In other words, if you are talking to a social worker on the telephone, you can record the conversation without the social worker being aware of the recording, and the recorded conversation is legal and can be presented in court as evidence at a later date. Electronic stores sell telephone taps that simply plug into the telephone line and allow the conversation to be routed into a portable tape recorder. They generally cost between twenty and thirty dollars and are extremely simple to use.

9.) Compile a list of emergency telephone numbers that will be handy should you encounter any type of confrontation with authorities over the rearing or discipline of your children. The Family Defense Network of Ohio is compiling a list of criminal defense attorneys who will be available if you are wrongly arrested by the police. This list is updated regularly and is available by calling the FDNO at 1-800-438-8277.

10.) Do NOT be afraid to stand up for your rights and protections under the Fourth Amendment of the United States Constitution. The Vermilion home educating family decided to stand up for what was right. They not only won thousands of dollars in damages, they established precedent that helped families all over this land. Ohio law protects the parent who wishes to raise their children in the manner prescribed by God. Parents are obligated to utilize that protection. Proverbs 19:20 says “Hear counsel, and receive instruction, that thou mayest be wise in thy latter end.”

Family Defense Network of Ohio
Post Office Box 26348, Cleveland, Ohio 44126
E-mail: FamilyDefenseNet@cox.net
http://www.fdno.org

Posted on July 27th, 2010 by Semper Fi
Filed under: Family, Family Court, Misc., children