Removing a child is terrible
not all parents are toxic
Too much power can lead to a messed up system.
San Bernardino County Supervisor Robert Lovingood is pushing for a change in state and federal laws that would allow social workers to drug-test parents suspected of being under the influence.
“There is nothing more important than protecting children from abuse and neglect. It’s time for state and federal law to give local communities the ability to prevent tragedy,” Lovingood said in a statement Thursday.
Lovingood’s proposal comes in the wake of the Board of Supervisors declining on Tuesday to adopt a policy, recommended by the San Bernardino County grand jury in its annual report released July 1, to furnish social workers with instant drug testing kits and train them on their use to determine if parents are under the influence of drugs. The grand jury also recommended that the policy allow social workers to immediately remove children from the home if they suspect the children are in danger.
The county, in its written response approved Tuesday by the board, said it will not implement the recommendation because social workers do not have the legal authority to compel parents to submit to a drug test.
“Also, under the law, a parent or legal guardian being under the influence is not sufficient cause, in and of itself, to remove a child from a home,” according to the county’s response, adding that it must be determined that the parent’s/guardian’s drug use places the child at risk, and unless that risk is imminent, the social worker cannot remove the child without a court order.
During Tuesday’s board meeting, Lovingood directed county staff to research state and federal laws on the issue and report back to him. On Thursday, he announced his plans to work with his colleagues on the board to draft legislation that would allow social workers to do on-the-spot drug testing when they suspect parents are under the influence of drugs, and give them authority to remove children from homes if the test reads positive.
“If we can identify any obstacles at the state or federal level, we should, and once we identify those then we can collectively, as a board, reach a decision to lobby for that change,” Lovingood said in a telephone interview Thursday.
C.L. Lopez, spokeswoman for the San Bernardino County Department of Human Services, which oversees Children and Family Services, said in an email Tuesday that “county departments do not take public positions on legislation.”
According to legal experts, Lovingood is fighting an uphill battle, and one major obstacle stands in his way: the U.S. Constitution.
“The proposal is clearly unconstitutional,” said Erwin Chemerinsky, a law professor at UC Irvine. “Drug testing is a search. It would require probable cause. Also, taking a child away would require notice and a hearing, unless there is an emergency.”
Jan C. Costello, professor of child and family law at Loyola Law School, said in a telephone interview that Lovingood’s proposal raises serious Fourth Amendment issues, and that while social workers do have authority to remove children from their homes if there is a perceived immediate threat to their safety, there is still due process afforded the parents.
John Eastman, a law professor at Chapman University and director of its Center for Constitutional Jurisprudence, agreed on the unlawful search and seizure concerns behind Lovingood’s proposal, and he said a search warrant would need to be obtained by a social worker in order to administer a drug test.
He said the proposal may also pose Fifth Amendment concerns since such a search could amount to compelling the parent to be a witness against themselves.
“On the other side of the equation is the child’s safety,” said Eastman. “That might provide the exigent circumstances necessary to avoid the need for a warrant. But the threat to the child would likely have to be serious and imminent, not just a speculation on the part of the social worker.”