To Investigate or Not?

It doesn’t seem like a lot to ask for either a court order, parental consent, warrant, probable cause or exigent circumstances in order to investigate a child abuse matter. However, there are two sides to every case and each usually has equally prevalent concerns. Considering the impact and emotional burden a child abuse investigation has on a child, leaves one to believe that the prerequisites are a strict necessity. But knowing the protracted speed of the criminal court system, and how that impacts the amount of time the possible abuse continues, would make a person reconsider whether it seems reasonable to require one of the prerequisites or not.

S.G. was a nine-year-old girl on February 24th, 2003, when she was seized and interrogated in school by government officials in order to be investigated for child abuse. S.G. was taken from her classroom by state caseworkers and investigative agents, one of which was armed, and questioned for two hours about her father’s possible abusive behavior. S.G. and her sister were put into foster care for two weeks while the investigation took place, and had to undergo investigation after investigation as well as medical examinations to determine if their was any abuse.

One of the issues from S.G’s case, currently before the Supreme court, is whether a child protective services worker meets the fourth amendment “search and seizure” burden requiring probable cause when interviewing a potential child abuse victim in school, or whether the a burden is lowered to one that of reasonable suspicion (see Jersey v. T.L.O. 469 U.S. 325  (1985) and Terry v. Ohio 392 U.S. 1 (1967)) The ninth circuit held that the temporary detention and investigation of a child in school, is unconstitutional unless the questioning officer has a warrant, court order, probable cause, or parental consent. The petitioners before the supreme court government, government agencies and social caseworker Camerata, believe the law imposes too serious a burden on the government at the initial stages of a child abuse investigation, while the respondent, S.G. and her mom, believe it is a necessity.

When weighing the governments interests, protecting a child in danger of abuse, against a parents concerns, the trauma and emotional impact of investigation, it is hard to determine which seems more severe given the enormity each will have on a child’s future. The government does not believe it possible to establish probable cause without first speaking to the child. However, the burden of  “reasonable suspicion” as required in T.L.O. and Terry seem to be too low a burden, given the impact a typical child abuse investigation has on children.

The procedures S.G. had to endure while investigated do not seem lawful when there is probable cause, and indeed appear to be less warranted when there is only “reasonable suspicion”. However, if the procedures of investigation were altered to be less scarring on the children and more considerate of children’s needs then that the lower burden does seem reasonable when weighing the effects undetected abuse has on the child.  When looking at the procedure of investigation, in S.G.’s case, piece by piece there are many alterations that could easily be made in order to be less scarring, and thus allow for the lower burden to seem just.

Firstly, It is embarrassing to a child to burst into a classroom and seize a child, as was done to S.G. School is a better place to do an investigation than the home. However, a child school not be pulled out of class by child protective services investigators themselves. It would probably be better for the investigators to approach the administration and have the administration or faculty call the child in for question.

Secondly, a child would feel more comfortable and open up to questioning if someone he or she knows asked the questions. Perhaps start with the teacher or principle questioning the student rather than an investigative officer. If the state feels they need to conduct the investigation with their own personal then it would be better to have a social services caseworker who knows how to better communicate with children than an investigative officer do the questioning. Additionally, what child would open up when an armed officer is present? It is vital that a child not feel intimated or uncomfortable. Having a firearm present while questioned would make anyone feel like they are already in the wrong, and they would feel compelled to give the officer the answer which the officer wants to hear.

Third, it seems excessive to have the children placed in foster care, away from both parents, while investigations are underway. Why place children in the foster care system, where there are so many foreign obstacles the children will need to overcome? There are no benefits that come from making children displaced persons. Instead of placing a child in foster care, placing a child with a grandparent, family friend or at least in a familiar environment would make the process smoother and less alarming to a child.

Lastly, if the child must undergo a medical examination as part of the investigation, why not bring them to their primary pediatrician their mom or dad always brought them to. All doctors that trained in a U.S. hospital learned the signs of abuse, and will be able to detect if their patient has been a victim. Most doctors will likely want to report it as well. Using someone the child previously recognizes, will put them at more ease than they would be with a complete stranger examining them. Agencies officials should consult with the primary physician as to what examinations they need, and what the necessary signs for accusations are.

I believe it is worse to let a child continue getting abused if there is reasonable amount of evidence to conclude that there is abuse occurring. Rather than require probable cause let us make these small but influential changes to the investigative procedure that would be less embarrassing, harmful and stigmatizing to the child. If the process is less painful, there is no concern in only requiring the special needs doctrine of  “reasonable suspicion.” It will not matter that child abuse is found in only one fourth of the 3.6 million investigations that occur, as long as the investigations are done in a careful and considerate manner, using people and places of familiarity to the child.