DFPS's Policies to Abide by the Fourth Amendment

The below is from Section 1230 of the DFPS Child Protective Services Handbook.  This section explains how DFPS is to abide by the US Constitution in making searches and seizures.

The Fourth Amendment of the United States Constitution regulates DFPS investigations. Though DFPS investigations entail some unavoidable infringement on the privacy of the persons involved, the Fourth Amendment provides families and children protection from unreasonable search and seizure.



Definitions of Search and Seizure


A search is the act of entering a home or inspecting another place where a person has a reasonable expectation of privacy.


A seizure is an act that would make a reasonable person feel that he, she, or other persons (such as family members) are not free to leave.


An individual is protected by the Fourth Amendment any time that DFPS performs a search or seizure.


Definition of Imminent and Exigent

Imminent means immediate. For example, unless CPS staff believe that the child is in immediate jeopardy or sexual abuse is about to occur, an emergency removal without a court order is not warranted.


Exigent circumstance is a situation that requires immediate action, such as the example described above.


Examples of DFPS Activities That Invoke Fourth Amendment Protection


There are four primary examples of DFPS activities that invoke Fourth Amendment protection. The proper legal steps for performing any of these actions while protecting Fourth Amendment rights are as follows. Consult the relevant policy for additional guidance:


1. Entry of a home:


• Obtain positive and unequivocal voluntary consent from a person legally authorized to give permission to enter. Whether a person is authorized to give consent varies with the person’s age, role, and location


OR

• Obtain a court order authorizing entry of the home


OR


• Establish that there are exigent circumstances. This means that based on the totality of the circumstances:


• there is reasonable cause to believe a child in the home is in imminent danger;


AND


• the purpose of the entry is to prevent the danger


2. Visual examination of a child:


• Obtain consent from the child, a parent, or a person with legal responsibility for the child


OR


• Obtain a court order authorizing physical inspection of a child


3. Transporting a child from school:


• Obtain consent from a parent or person with legal responsibility for the child


OR


• Obtain a court order authorizing transporting a child from school


OR


• Hold a reasonable belief that the child has been abused and probably will suffer further abuse upon the child's return home at the end of the school day


4. Removal of a child:


• Obtain consent for a parental child safety placement


OR


• Obtain a court order for removal and conservatorship before the removal of the child


OR


• Establish that there are exigent circumstances that require an emergency removal without a prior court order. This means that based on the totality of the circumstances there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if he or she remains in the home.