0070-570.10 | Revision Date: 07/01/14
Overview
This policy addresses how to obtain warrants and/or removal orders to investigate child abuse referrals, remove children, and seek forensic medical/sexual abuse examinations.
TABLE OF CONTENTS
Warrants in Existing Dependency Cases
Investigating a Child Abuse Referral
Investigative Medical/Sexual Abuse Examinations
Taking a Child into Temporary Custody
Requesting an Investigative Search Warrant
Warrant Liaison Responsibilities
Serving an Investigative Search Warrant
Warrant Liaison Responsibilities
Investigative Search Warrant Has Been Served
Warrant Liaison Responsibilities
Warrant Liaison Responsibilities
After the Court Signs the Removal Order
Warrant Liaison Responsibilities
After Executing the Removal Order
Version Summary
This policy was updated from the 07/09/13 version, as part of the Policy Redesign, in accordance with the DCFS Strategic Plan.
Social workers' investigations of child abuse and the removal of children at risk of abuse and neglect are subject to the warrant requirement of the U.S. Constitution. Warrants protect individual family member's Fourth Amendment right to be free from unreasonable searches and seizures, as well as parents' and children's Fourteenth Amendment right to live together without government interference, and thus not to be separated by the government without due process of law.
As a result, a Children's Social Worker (CSW) must obtain a search warrant to:
The CSW can also take a child into temporary custody when:
Warrants can be obtained 24 hours a day, 7 days a week – after hours, weekends and holidays by contacting command post warrant liaisons at (213) 639-4500.
Constitutional protections apply to cases in which the Juvenile Court has already assumed jurisdiction of a child who has been placed with his or her parent. The legal requirements outlined in this Policy Guide also apply to cases in which a CSW investigates a referral regarding a dependent child placed with a parent or guardian or decides to remove a child from his or her parent pursuant to WIC 342 (subsequent petition) or 387 (supplemental petition). If a CSW would like to remove a child from the parent’s home and files a WIC 342 or 387 petition, absent consent or exigent circumstances, a removal order is required.
The Warrant Tracking System is a web-based system that tracks the status of warrant applications from the time of the warrant application’s initial submission through warrant application closure. The Warrant Tracking System will:
The assigned CSW, SCSW and ARA may log into the Warrant Tracking System at any time to check the status of a Warrant Consultation. The Warrant Tracking System is available on LA Kids under Web Systems Listing.
Requestors are to ensure that a thorough investigation has been completed and all case information is accurate in CWS/CMS prior to submitting the Warrant Consultation Request. Inaccurate case information may result in a delay in processing the Warrant Consultation. The Warrant Consultation Request can be found in CWS/CMS, in the Referral/Case Management Section. The Warrant Consultation Request will be automatically transmitted to the Warrant Tracking System once the “Submit Warrant” button is clicked.
Upon Warrant Consultation Request submission, the requestor will be given a confirmation that indicates the Warrant Consultation Request was submitted to the Warrant Tracking System, and a Warrant Tracking Number will be generated. A Warrant Liaison will contact the Warrant Consultation Request requestor within one hour to begin the warrant consultation.
To enter a home to investigate allegations of abuse or neglect, a CSW must have one of the following:
A CSW may enter the home to conduct an investigation if the CSW has obtained consent from a person with apparent authority to provide it. Consent means permission. In most cases, the person providing consent must live or appear to reside at the residence.
The CSW should obtain consent after stating the request to enter the home and explaining the purpose of the entry.
CSWs must never coerce, threaten or force consent to enter a home. The person with authority to consent must do so freely and voluntarily.
The person granting consent controls the scope of the consent, and is free to limit or withdraw consent at any time. If consent is restricted to certain areas of the property (i.e. the CSW is not allowed access to certain rooms), or to a specific type of search (i.e. the parent does not want to allow the CSW to talk to the child or examine the unclothed body of a child, etc.), the CSW must limit the search as requested. If consent is completely withdrawn, the CSW must leave the residence immediately, unless exigent circumstances exist to support the continued search.
Who Can Give Consent |
Description |
Parents |
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Co-occupants |
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Babysitter |
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Minors |
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A CSW may enter a home to investigate without consent or a search warrant where exigent circumstances are present. Exigent circumstances exist where there is reasonable cause to believe that the child is in imminent danger of serious bodily injury (which includes sexual abuse).
The seriousness of the potential harm to the child does not create exigent circumstances if the risk of harm is not immediate. If there is time to get a warrant before the child will likely suffer serious physical harm, the risk of the harm is not imminent and a court order/warrant should be sought.
To determine whether exigency exists, the CSW should evaluate all of the relevant factors. A CSW should also be mindful of any delay between report and response (or response and detention). Any delay in responding to the referral or in detaining a child believed to be at immediate risk of harm may negate a finding that exigent circumstances existed unless additional information discovered at the scene independently establishes exigent circumstances. An imminent risk of harm requires an immediate response.
An investigative search warrant is an order from a court allowing a CSW (accompanied by law enforcement) to enter a home despite objection of the person residing in the home to conduct a child abuse investigation.
The investigative search warrant:
A social worker may detain a child following the execution of an investigative search warrant only if the circumstances at the scene are exigent, per WIC Section 306.
To obtain an investigative search warrant, a CSW must establish that probable cause exists to justify the search.
When there is no evidence of abuse or neglect and the CSW does not believe the child is at any risk of abuse or neglect, it is not appropriate to seek a search warrant. Search warrants are not a tool to be used to close a referral.
A CSW may obtain a court order for an investigative/evidentiary medical examination and investigative/evidentiary sexual abuse examination in situations where parental consent and exigent circumstances do not exist.
Generally, California law authorizes a medical examination of any child who has been placed into protective custody under the following circumstances:
However, federal appellate court cases prohibit investigative/evidentiary medical examinations unless one or more of the following conditions exist:
All requests for investigative/evidentiary medical examinations where exigent circumstances do not exist (as described above), should be made at a court hearing or in a warrant application.
CSWs cannot exclude parents from the location of their child’s physical examination unless consent has been given to do so, there is a legitimate basis for exclusion, or it is an emergency requiring immediate medical attention. A family’s right to be present during potentially traumatic medical examinations may be limited in certain circumstances to presence nearby the examinations (in the waiting room or another nearby area) if there is a valid reason to exclude the family members from the exam room during a medical procedure. If a CSW wishes to exclude a parent or guardian from a medical examination – even if that medical examination was ordered by a court – the CSW should contact their SCSW for guidance. The SCSW will consult with the Warrant Liaison or County Counsel, as necessary.
Before taking a child into temporary custody, the CSW must consider whether the child can remain safely in his or her residence. The consideration of whether a child can remain safely at home shall include, but not be limited to, the following factors:
To take a child into temporary custody, a CSW must have one of the following:
In some instances, a parent/guardian may agree to a temporary situation in which he or she voluntarily agrees to give up custody of his or her child for a short period of time. For instance, a Voluntary Family Reunification Plan (VFR) may constitute the removal of a child if the plan requires that a parent/guardian relinquish custody or control of his or her child for any period of time.
For a valid parental consent to take a child into temporary custody, the parent must understand that he/she is consenting to all of the following:
It must be clearly documented in the Contact Notebook how the consent was given including words used by CSW, responses from the parent/legal guardian, a description of the parent/legal guardian’s conduct during the conversation, and whether any other people were present at the time. When possible, include verbatim statements.
A CSW may only detain without a court order if the information he or she possesses at the time of the detention provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and the intrusion is reasonably necessary to avert the injury.
When determining whether to detain without a court order, a high risk of abuse or the seriousness of the potential harm does not always equate to immediate risk, if that high risk of harm is not imminent. If there is time to get a court order before the child will likely suffer serious physical harm, the risk of the harm is not imminent.
To determine whether exigency exists, the CSW should evaluate all of the relevant factors, including, but not be limited to, the following:
A determination of exigent circumstances is fact specific and should be made based on the entirety of the circumstances. In homes where more than one child resides:
If it is determined that a child is at an immediate risk of serious bodily harm, the child should be taken into temporary custody immediately. A delay may negate a finding that exigent circumstances existed, should the removal be challenged later.
If the risk of harm is high but not immediate, a court order will be required before the CSW may take the child into temporary custody. There are two different types of court orders which allow a CSW to take a child into temporary custody without consent or exigent circumstances.
Removal Orders |
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Purpose |
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Required Documentation |
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Execution of Order |
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*When there is more than one child residing in the home, a separate evaluation must be done for each child to determine whether or not a court order should be used to take each child into temporary custody. |
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**If there are safety concerns, contact law enforcement for assistance.
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***Only if the “Entry into the Home Where the Child(ren) is Located” and “Orders Authorizing Entry into Child(ren) Location is marked on the removal order and the address matches the location of the child(ren). |
A removal order must be supported by probable cause. A CSW must possess reasonably trustworthy information that the child’s continued residence in the parent/guardian’s home is contrary to the child's welfare, and any of the following circumstances exist:
Detention Order Pursuant to WIC 319 |
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Purpose |
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Required Documentation |
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Examples of When it May be Used (This is not an exhaustive list) |
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*When there is more than one child residing in the home, a separate evaluation must be done for each child to determine whether or not a court order should be used to take each child into temporary custody. |
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**If the child is not present at the detention hearing and cannot be located or picked up by the CSW after the detention findings are made, the court will issue a protective custody warrant for the child to be taken into temporary custody when located. |
Court Order requirements differ when a child is on a Hospital Hold or in school:
Location |
Court Order Not Required |
Court Order* Required |
Exigent Circumstances Exist |
Exigent Circumstances Do Not Exist |
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Exigent Circumstances Exist |
Exigent Circumstances Do Not Exist |
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*Removal Order or WIC 319 Petition |
Forms/Documentation |
Description |
CWS/CMS Case Notes
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DCFS 4381, Warrant Fact Sheet |
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DCFS 4382-A, Investigative Search Warrant |
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DCFS 4382-B, Forensic Medical/Sexual Abuse Examination |
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DCFS 4382-C, Statement of Cause
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Warrant Liaison Responsibilities
Warrant Liaison Responsibilities
Warrant Liaison Responsibilities
Forms/Documentation |
Description |
CWS/CMS Case Notes
|
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DCFS 4381, Warrant Fact Sheet
|
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DCFS 4383-A, Statement of Cause for Removal Order |
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DCFS 4385-F, After Hours Removal Order Review Request |
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Attachments |
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Warrant Liaison Responsibilities
Warrant Liaison Responsibilities
County Counsel & Warrant Liaison
SCSW Approval
Warrant Consultation Request
DCFS 4381, Warrant Fact Sheet
DCFS 4382-A, Application for Investigative Search Warrant
DCFS 4382-B, Application for Investigative Search Warrant with Request for Medical or Sexual Abuse Examination
DCFS 4382-C, Statement of Cause for Investigative Search Warrant
DCFS 4383-A, Statement of Cause for Removal Order
DCFS 4384, Return to Warrant
DCFS 4385-A, School Interview Order Application
DCFS 4385-B, School Interview Order Instruction Sheet
DCFS 4385-C, Superior Court Removal Order Request - Single Child
DCFS 4385-D, Superior Court Removal Order Request – Sibling Set
DCFS 4385-E, Request to Expedite
DCFS 4385-F, After Hours Removal Order Review Request
0070-506.11, Interviewing the Alleged Victim at School for the Purpose of Investigating a Child Abuse Referral
0070-548.20, Taking Children into Temporary Custody
0100-510.21, Voluntary Placement
0300-301.05, Filing Petitions
0300-303.06, Hospital Holds
0300-303.15, Writing the Detention Report
0600-500.00, Medical Hubs
Calabretta v. Floyd, (9th Cir, 1999) 189 F.3d 808
Wallis v. Spencer, (9th Cir. 2000) 202 F.3d 1126
Mabe v. San Bernardino County (9th Cir. 2001) 237 F.3d 1101
Rogers v. County of San Joaquin (9th Cir,. 2007) 487 F.3d 1288
In re Dawn O. (1976) 58 Cal.App.3d 160, 163
Greene v. Camreta, (9th Cir. 2009) 588 F.3d 1011
Family Code Section 6920-Subject to the limitations provided in this chapter, notwithstanding any other provision of law, a minor may consent to the matters provided in this chapter, and the consent of the minor's parent or guardian is not necessary.
Welfare and Institutions Code (WIC) Section 306 - States when a social worker can take a child into temporary custody from law enforcement and without a warrant. Further states that reasonable services should be provide to prevent taking the child into temporary custody.
Welfare and Institutions Code Section 309(a)-States upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the child's being taken into custody and attempt to maintain the child with the child's family through the provision of services. The social worker shall immediately release the child to the custody of the child's parent, guardian, or responsible relative under certain conditions.
Welfare and Institutions Code Section 340-States in part that a protective custody warrant may be issued immediately for the child who is or allegedly falls within section 300, appears to the court that the circumstances of the child’s home environment may endanger the health, person or welfare of the child, and/or whenever a dependent child has run away from his or her court ordered placement.
Penal Code Section 11174.3-Allows CSWs to interview children at school and provides parameters to do so.