Wednesday, 12 January 2011

What limits exist upon social services investigations?

Wyman v. James Revisited: Judicial Oversight, Constitutional Rights, and Social Services Investigations
Abstract:     
This article is focused upon administrative searches and seizures undertaken by social services agencies with respect to child welfare complaints. In addition to articulating the past and current state of the law, the article proposes changes to bring about a greater consistency among the federal and state courts in the United States.

The U.S. Supreme Court, in Wyman v. James, 400 U.S. 309 (1971), for the first time considered the issue of the applicability of the Constitution to social services investigations, though it has continued to explore the constitutional implications of the administrative search or seizure. It has not sought to address the issue since that time. Nevertheless, in the intervening thirty-six years, a large number of federal and a handful of state courts have reviewed the constitutionality of social services investigations and, in the process, have tackled the issue of the continued viability of Wyman: whether social workers are state actors for the purpose of the applicability of the Fourth Amendment, whether child welfare investigations constitute a search or seizure, whether a warrant and probable cause is required to conduct a search and whether a social worker special need exception exists to Fourth and Fourteenth Amendment scrutiny.

Given the on-going occurrence of the social services home investigation since Wyman, the need for an articulation of the current state of the law is great. Part One of this article attempts to provide such an articulation, giving an overview of both Fourth and Fourteenth Amendment protections as they apply to all governmental searches. Part Two undertakes a review of the Pre-Wyman case law regarding administrative searches, as well as Wyman itself, reviewing finally the post-Wyman case law from both the federal and state courts regarding administrative social services investigations and the applicability of the Fourth and Fourteenth amendments. Part Three of this article reconsiders Wyman in light of the most recent judicial developments and asks the question as to whether the requirement of a warrant and probable cause is appropriate for social services child welfare investigations or whether the Supreme Court's totality of the circumstances rationality test or its Special Needs doctrine may justify the creation of a social worker exception to the general warrant and probable cause requirements incumbent upon most searches and seizures

Tuesday, 4 January 2011

Duty of GAL appointed for a parent under 7B-602(b)


In re A.S.Y., __N.C.App.__,__S.E.2d__ (December 21, 2010)

The N.C. Court of appeals has issued an opinion in the above-listed case which reverses the trial court's decision to revieve a court appointed GAL of further responsibility in a TPR action filed by a motion in the cause. The Respondent Mother failed to appear at the hearing, her GAL presented the mother's position that the Court had no jurisdiction over her and then successfully moved to be withdrawn, with no objection from any party. The Court of Appeals reversed, holding as follows:


"When a GAL is appointed in accordance with Rule 17 for a parent in an abuse, neglect, or dependency proceeding, or a termination of parental rights proceeding, it is the duty of the GAL to act “as a guardian of procedural due process for that parent, to assist in explaining and executing her rights.”. . .
GAL appointed pursuant to Rule 17 “has a duty to represent the party he is appointed to represent to the fullest extent feasible and to do all things necessary to secure a judgment favorable to such party.”. . .
party so represented. . . .” N.C. Gen. Stat. § 1A-1, Rule 17(e). Since the trial court determined that respondent-mother could not adequately represent her own interests and appointed a GAL to
represent respondent-mother pursuant to N.C. Gen. Stat. § 7B-602(c), the requirements of Rule 17 applied to the termination proceedings. Thus, the trial court erred by conducting the termination hearing without the presence and participation of a GAL for respondent-mother, and the trial court’s order terminating
respondent-mother’s parental rights to Amanda was invalid. Accordingly, we vacate the trial court’s order and remand the case for a new termination hearing that complies with the requirements
of Rule 17.

Monday, 3 January 2011

Call for Abstracts: National Association of Counsel for Children

Now accepting abstracts:
34th National Child Welfare, Juvenile, and Family Law Conference, August 30 – September 1, 2011, at the Hotel del Coronado in San Diego, CA! To submit an abstract, please visit: https://naccchildlaw.site-ym.com/?AbstractSubmission. The deadline for abstract submissions is February 1, 2011. The NACC is soliciting abstract submissions on any topic related to child welfare, juvenile, or family law. Additionally, the NACC has identified the following topic areas we wish to incorporate at the conference:

CLOP / Office Management
Ethics
Funding Strategies
ICPC
ICWA
Immigration
Incarceration
Interview Skills
Mediation
Medical Aspects of Child Welfare
Non-Verbal Children
Older Youth (i.e. SSI, extended jurisdiction, ID theft)

Please note that the presenter will be responsible for travel and their
own accommodations.