C. Fourth Amendment Requirements in an Investigation
For any investigative action that involves entering or remaining in a home, transporting a child for an interview, or removing a child from a parent’s custody, DFPS must have consent, a court order, or exigent circumstances per Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404 (5th Cir. 2008).
An evaluation of consent is based on the totality of the circumstances and under a standard of objective reasonableness. Silence or passivity cannot form the basis of consent to enter. Also, mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent. Once consent is given, the consent may be limited, qualified, or withdrawn. Gates, 537 F.3d at 420.
2. Court Order
If a caseworker cannot gain consent, they may seek a court order to allow entrance for an interview, examination, or investigation. Tex. Fam. Code § 261.303(b).
3. Exigent Circumstances
If there is not time to gain a court order, however, DFPS can still enter or remain in a home, even absent consent, if there are exigent circumstances. Under this standard, there must be a reasonable cause to believe that the child is in immediate danger. Entering or remaining in the home for the sole purpose of interviewing the child does not suffice. Gates, 537 F.3d at 421-23.
4. Anonymous Tip
An anonymous tip, absent some showing that it is reliable, is not enough to justify removal for an interview. Instead, the tip must be corroborated through a preliminary investigation that can include an interview of the child’s teachers or peers, an interview of the child at the school, or by looking for injuries on the child without removing any of the child’s clothing. In determining whether to take the child to another location for the interview, the caseworker should take into account the child’s wishes. Gates, 537 F.3d at 424. A person who is notified of and attempts to interfere with the transportation can be charged with a Class B misdemeanor. Tex. Fam. Code § 261.302(f).
5. Taking Child Into Separate Room for an Interview
Like a Terry stop [Terry v. Ohio, 392 U.S. 1, 21-22 (1968)], all that is required is a reasonable suspicion of abuse or neglect so long as the interview is no more intrusive than necessary. Gates, 537 F.3d at 434.
6. Transporting a Child from School to Another Location for an Interview
Before transporting a child for an interview, DFPS must first attempt to notify the parent or other person having custody of the child. Gates, 537 F.3d at 429. Absent consent to transport, DFPS may obtain a court order. Although there is currently no express statutory provision authorizing such an order, Tex. Fam. Code § 261.303 may be applicable. According to the holding in Gates, in order to transport a child from a public school for an interview absent a court order or consent, a caseworker must have a reasonable belief that the child has been abused and probably will be abused again upon his return home at the end of the school day. Gates, 537 F.3d at 439.