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Warrantless Removal of Children

31 December 2001 Published in Legislative Work

 The Utah Legislature is once again considering the agonizingly difficult issue of when the State is justified in removing a child from his or her family. That issue implicates complex and sometimes competing interests of the child, the parents and the State, because few constitutional rights are more cherished than familial rights, and few State interests are more compelling than the interest in protecting children from serious abuse. While recognizing the difficulty of the issue and the importance of the sometimes competing interests, the American Civil Liberties Union of Utah believes the U.S. Constitution clearly provides that, absent narrowly defined exigent circumstances, a child can be removed from his or her family only when an independent judicial officer issues a warrant authorizing the removal. 

In considering this issue, the first question is whether removal of a child from his or her family implicates Constitutional rights at all. Child advocates claim removal is an “administrative” matter that does not trigger constitutional protections. The ACLU strongly disagrees. The Constitution’s Fourth Amendment guarantees every family the right to be secure in their home against “unreasonable searches and seizures.” This means the government cannot enter and search a home or seize items from the home without a warrant except in limited circumstances. The ACLU respectfully suggests that in constitutional terms, a child is the most serious seizure a government can make and that family integrity is at the core of this important constitutional protection. 

Recognizing that the Fourth Amendment protects family integrity requires a careful balance among the various rights and interests at issue. It also requires a clear articulation of the circumstances under which a child can be removed from his or her family without a warrant. Under current Utah law, a social worker may enter the home without a warrant and remove a child under loosely defined criteria. As a result, warrantless removal has become the norm, rather than the exception. According to the Division of Child and Family Services, nearly 90% of children removed from their families in 2001 were removed without a warrant. The “primary placement reasons” given by protective custody workers do not suggest that all of these children were in danger of serious imminent harm. To the contrary, three out of four were removed for “delinquent behavior,” “dependency” or “neglect.” Only 17% were removed due to physical or sexual abuse. 

The ACLU does not wish to demean social workers – they are hardworking, well intentioned and underpaid. Rather, our hope is to provide clarity in the law so that they will only rarely be faced with the heart-wrenching decision to remove children from their homes without any independent judicial review. To grant them broad discretion in such important matters is to vest too much power in the hands of the State. The ACLU believes a better approach is to make warrantless removal the rare exception rather than the general rule. This can be achieved with clear statutory language to the effect that case workers or other state actors may forgo the warrant requirement when removing a child from his or her home only when there is reason to believe that a child’s life or limb is in immediate jeopardy and that the seizure is necessary to alleviate the threat. See Franz v. Lytle, 997 F.2d 784, 792 (10th Cir. 1993), citing Good v. Dauphin County, 891 F.2d 1087, 1090 (3d Cir. 1989). 

See House Bill 295 Taking Minor Into Protective Custody Without a Warrant >>