Andrews v. Hickman: Is DCS Taking Their Ball and Leaving?

Tennessee’s Juvenile Court system will always have a special place in my heart, even if it’s a love-hate relationship.  I started my law career practicing in Greene County Tennessee’s Juvenile Court.  My first case was a Dependency and Neglect action (often called a D&N).  I still participate in the process from time to time, and some of the most rewarding work I’ve done has been as Guardian Ad Litem–the attorney appointed in juvenile proceedings to represent a child’s “best interests.”

I’ve seen a lot of potential for abuse of the system, though, and it’s made me think about the necessary checks and balances government organizations like Tennessee’s Department of Children’s Services (DCS) need in order to make sure their work is compliant with the law.  When I started practicing, DCS workers were able to enter a home to conduct interviews and a walk-through of residences without a court order and didn’t seem to really fall under scrutiny for Fourth Amendment requirements on home searches.  This didn’t sit well with my attorney side.  Many of the DCS “walk-throughs” I heard about in court seemed sketchy and some went quite above and beyond what police were allowed to do in criminal cases.  There didn’t seem to be much precedent in Tennessee law placing DCS “walk-throughs” under Fourth Amendment guidelines, and the rationale for this revolved around “This is for the children” and “We’re not the cops.”  This has changed with the Sixth Circuit’s opinion in Andrews v. Hickman County, Tennessee, which requires DCS workers to get a court order before entering a residence and makes DCS case workers comply with Fourth Amendment guidelines on searches of homes.

The shortened version of the case is as follows: A DCS case worker got a “priority two” referral alleging abuse in a home.  “Priority Two” referrals mean there is a risk of harm to the children, but the child is safe for the time being and recommends contact with the child in forty-eight hours.  After getting a correct address for the home, the case worker and two colleagues met with Hickman County Sheriff’s deputies for their visit as information led DCS to believe guns were present in the residence.  The children’s father asked for identification on arrival and demanded the officers and DCS staff wait outside while he verified the dispatch was valid.  This request was because the family allegedly had an issue with someone previously posing as law enforcement.  Some dispute occurs as to what happened next, but the accounts point to the officers and DCS entering the home against the parents’ wishes.  DCS immediately took charge of the investigation on entry and obtained consent to interview the children and walk through the house.  The parents stated they consented for fear of arrest or removal of their children from the home.  The officers soon left, citing a shift change.

The parents later filed suit against the DCS workers and the officers in Federal Court, under 42 U.S.C. § 1983 alleging violations of their Fourth and Fourteenth Amendment rights from the warrantless entry into their residence.  The Defendants claimed “qualified immunity” from the suit, which is a doctrine shielding government officials from civil damages while doing their job as long as they don’t violate clearly acknowledged statutory or constitutional rights a reasonable person would know.  The Sixth Circuit Court of Appeals held in Andrews v. Hickman County the Defendants all violated the parents’ Fourth Amendment rights, and a reasonable police officer would have known his actions on entering the home were unlawful.  However, the Department’s case workers would not have known in light of previous laws and regulations their conduct was unlawful.  As a result, the case workers were shielded from civil liability but the police officer was not, and the Sixth Circuit Court of Appeals held no “social worker exception” exists for the Fourth Amendment.  DCS case workers must obtain a court order before conducting a walk-through of a home absent exigent circumstances or voluntary consent, and DCS case workers must comply with existing Fourth Amendment provisions.

Was the Andrews decision correct?  I believe so. The Fourth Amendment requires state actors get an order from a neutral and detached magistrate before entering homes for a search, absent exigent circumstances.  This is nothing new in Tennessee jurisprudence, it protects the rights of the accused, and it brings the State of Tennessee in line with other Sixth Circuit jurisdictions.  It also shielded the DCS case workers who were doing their jobs at the time in a manner consistent with their duties.  The Andrews decision just adds the extra layer of requiring a court order before entering a home unless severe enough conditions merit a “warrantless entry.”  This is good law in action.

Tennessee’s courts reacted swiftly in the wake of Andrews, setting up “24/7” access to Juvenile Court Magistrates for DCS to obtain “ex parte” orders granting DCS access to homes for walk-throughs where required.  If a Department worker feels there is a need to enter someone’s home, some courts will even give the orders via phone or email. It was a massive step to take, and put a lot of magistrates in difficult positions, but these individuals tasked with interpreting laws that govern our State’s children and their safety were willing and able to step up to the task.

It appears the Department is not up to the same standards, though. An article surfaced in the Tennesseean at the end of October stating a new policy change in light of Andrews at the Department of Children’s Services. The agency regarded as the “first line of defense” for our state’s children will no longer remove children from a home absent an in-person court hearing. This was a policy change suggested and implemented by the Department’s chief legal counsel.

After reading and thinking about this, my response to the Department is as follows: “Wait, what?”

There is NOTHING in Andrews requiring an in-person hearing before removal of children from a home where abuse is suspected. The Andrews children weren’t even removed. The case put DCS on notice a court order is required before Department case workers can legally enter a home, absent exigent circumstances, and requires Department “walk-throughs” to be compliant with Fourth Amendment requirements just like any other search by a government actor. If the Department feels a child needs to be removed from a home, it appears they still have the same safeguards in play as before–DCS can still petition for the removal of the child ex parte, and the Courts can grant it ex parte. The ONLY change to the law is that DCS workers must abide by rights provided to Tennesseans in the United States and Tennessee Constitutions.

The Department of Children’s Services response to Andrews is essentially a public temper tantrum. Because they now have to follow the Constitution, DCS will no longer function as the “front line of safety” for our state’s children. The Department has taken the stance of “If I have to follow the rules of the game, I will take my ball and go home. I simply don’t want to play with you.” Such conduct makes me question the Department’s motives in light of Andrews. I understand their reasoning to a degree–they are afraid of blowback, and they are afraid of potential civil liability for the Department and its employees as DCS has been put on notice. These requirements have not stopped law enforcement from doing their job, and they shouldn’t stop DCS from protecting our state’s children.

There are scores of well-meaning, hard working individuals at the Department of Children’s Services, just as there are scores of well-meaning, hard working police in Tennessee. Each of these individuals does their job because they feel it’s important, and they work knowing it’s a thankless calling to protect and serve citizens. I would further add the Department is tasked with the lofty goal of protecting our state’s most valuable resource–our children. Just as there are unscrupulous law enforcement officers, there are some DCS workers who abuse their positions or use their status as a government actor for malicious reasons. I contend the Andrews decision places an important check against those who would use their Department credentials to do harm under the auspices of “for the good of the children.” This decision should be welcomed by DCS, and the repercussions of the policy change the Department enacted in the wake of the Sixth Circuit’s holding–for good or ill–should fall squarely on the Department.

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