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CA5: CPS order to take possession of a child permits entry into the home to get the child

By John Wesley Hall, Jr.

Court order for taking custody of a child in a child protective services investigation reasonably permits an entry into the home to take possession of the child. Wernecke v. Garcia, 2009 U.S. App. LEXIS 27636 (5th Cir. December 15, 2009): The facts of this case validate our continuing concern with the risk of flight in Fourth Amendment cases: KW was not present in the Wernecke home because Mrs. Wernecke had, in fact, absconded with her to prevent TDFPS from taking KW into protective custody. TDFPS did not take physical custody of KW until June 4, 2005, three days after the § 262.102 order was issued, because of Mrs. Wernecke's evasion. With these concerns firmly in mind, we reiterate that when a state social worker obtains from a judge a temporary emergency custody order that imposes legal duties on the state agency and has reason to believe the child is within the child's home, the social worker may, consistent with the Fourth Amendment, enter and search the home for the child...continue to full post

Full post as published by Fourth Amendment on December 20, 2009 (boomark / email).