We recently had a situation where a our local PD wanted to go pick up a child under 10 yoa from school and transport him to the CAC for an interview without notifying the uncooperative/suspect parent. CPS was either unable or unwilling to send a representative to release the child to. The school's response was that a child under 10 can only be released to CPS. The situation was eventually resolved and the child was properly interviewed, but I see this situation arising in the future and need to know what the law is regarding this. I find in Ch. 261 of the Family Code where CPS has the authority to take a child from school to perform an interview and the requirements to notify parents/guardians, but I've found no prohibition from law enforcement doing the same. Is there such a prohibition? Does it matter if the child is under or over 10?
The Supreme Court recently heard oral argument on this issue. http://www.scotusblog.com/case-files/cases/camreta-v-greene
The 9th Circuit held that it was a constitutional violation for police to seize a child who might be a victim from school without a warrant or consent.
Greene v. Camreta, 588 F.3d 1011, 1030 (9th Cir. 2009)("In short, applying the traditional Fourth Amendment requirements, the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances,or parental consent was unconstitutional."). The 9th held that the police had immunity from sec. 1983 damages because there was no clear precedent against it at the time of the interview. Id. at 1033 ("Because our precedent did not clearly establish that the in-school seizure of a student suspected of being the victim of child sexual abuse can be subject to traditional Fourth Amendment protections, and because, applying the lesser T.L.O. standard, the defendants' actions were not so clearly invalid as to strip them of immunity, we affirm the district court's ruling that defendants are entitled to qualified immunity on the Greenes' Fourth Amendment claim.")
Apparently, there is a good chance that the Supreme Court will not answer the merits of the case.
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