Last week the Parental Rights Foundation filed an amicus curiae (“friend of the court”) brief in the Ninth Circuit parental rights case, Dees v. County of San Diego.

At question in the case is whether the Fourteenth Amendment’s protection of parental rights is limited to cases where termination of parental rights or loss of custody are at stake.

In its current ruling, a panel of the Ninth Circuit determined that Sara Dees’ parental rights were not violated when her 9-year-old daughter was interviewed at school by a child welfare investigator against Sara’s expressed wishes. The court panel ruled against Sara because her daughter was never taken from her custody and the interview “only lasted five minutes.”

But does the Constitution only protect parental rights when the parent loses custody?

Lawyers for the petitioner, Sara, made the argument that Fourteenth Amendment protections involve any interference into the rights of a fit parent—not only in cases where custody is in question. The Parental Rights Foundation had the opportunity to speak to the important role this constitutional precedent plays in protecting children from harm, by highlighting the significant scholarly research that documents the unintended harms of unnecessary child welfare investigations.

The family at the heart of this case suffered an intrusion when their 9-year-old daughter with developmental challenges was interviewed by a child welfare investigator without her mother Sara’s knowledge or consent, even though Sara was at the school building during the interview. Sara was not accused or suspected of abuse, and no one alleged that this child had ever been abused.

Still, the 9-year-old was interviewed without a warrant, a judicial order, parental consent, emergency circumstances, or even probable cause.

Yet, because the young girl appeared to consent to the meeting (the 9-year-old alone, not her mother or another mature legal representative), and because the interview “only lasted five minutes,” a panel of the Ninth Circuit determined there was no violation of the Fourteenth Amendment’s protection of parental rights.

(As a parent, I was shocked to read the court panel’s multiple references to “only five minutes.” Ask a parent who has ever lost track of their toddler in a store if they thought “only five minutes” out of their care could do lasting damage. Then ask yourself whether it is a violation of a parent’s rights. Five minutes can do a lifetime of harm. If there is no justification for the intrusion, the amount of time involved should make no legal difference. “Only five minutes” is five minutes too long. But I digress.)

Our brief, along with that of the mother, urges the Ninth Circuit to either rehear the case before the same three-judge panel or consider the case en banc—meaning, before the chief judge and 10 additional judges, to be drawn by lot from the active judges of the Court.

The Foundation’s petition urges a rehearing based on three important considerations:

(1) Child welfare investigations can be traumatic, life-altering events that harm children;

(2) minority families, as here, are disproportionally harmed by child welfare investigations; and

(3) Fourteenth Amendment protection shields children from harmful government overreach. (You can read the brief in its entirety here.)

In short, this Fourteenth Amendment right is a vital protection for children and their families that should have been considered much more carefully in the first hearing. Its near-omission makes a rehearing necessary and vital for parents seeking justice.

We’re honored to stand with Sara Dees in defense of her – and your – parental rights, and we will keep you informed when we have an update on this case.

Prior to this brief, the Parental Rights Foundation’s most recent filing was for In Re CJC, Relator, before the Texas Supreme Court. In June, that court made a decision favorable to the father and to parental rights.

To continue supporting our work to help families like Sara Dees’, share this article online and donate here today.

Thank you for standing with us!

Sincerely,

Michael