DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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Handbook 13: Cross Program Protocols
13-3  Home Entry Orders
Cross Program Protocols
13-3  Home Entry Orders
Reference Points
Overview
Application to Non-dependent and Dependent Children
Valid Consent to Enter a Home
Documentation
Who Has Authority to Consent
What Are Exigent Circumstances
Exigent Circumstances Standards and Parameters in Dependency Investigations
Criteria for Issuing a Home Entry Order
What Actions May Be Take With a Home Entry Order
Alternatives to Seeking a Home Entry Order
Home Entry Order Requirements
Procedures for Obtaining a Home Entry Order
Completing the Application and Declaration in Support of a Home Entry Order (SCZ 835)
Executing a Home Entry Order
Joint Response with Law Enforcement
Source Material
Other References


Reference Points
Effective Date: 5/1/06
Last Updated: 3/24/06
 Legal Basis:
Popup Window Welfare and Institutions Code (WIC) § 300
Popup Window WIC§ 305
Popup Window WIC § 328, 338-340
 Non CWS/CMS Forms:
MS Word Application and Declaration in Support of: Order Authorizing Entry into Home (SCZ 835)
 CWS/CMS Forms:
bullet Services Management Section: Contact Notebook


Overview  

Federal appellate case decisions (most widely noted, Calabretta v. Floyd) make clear that a social worker or law enforcement official investigating a report of suspected child abuse or neglect can only enter a child's home under the following conditions:

  • The parent consents to the social worker or law enforcement official entering the home; or
  • Exigent circumstances exist which justify entry into the home or
  • The social worker or law enforcement official obtains a court order authorizing entry into the home.

The need for a home entry order is rare, because in most cases the social worker either obtains consent or identifies exigent circumstances.

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Application to

Non-dependent and Dependent Children

 

Situations to which the possible need for a Home Entry Order applies include those involving :

  • All non-dependent children not under DFCS supervision.
    • This includes the biolgical or adopted children of foster parents.
  • Non-dependent children receiving Voluntary Family Maintenance or Informal Supervision services.
    • Though the Informal Supervision Agreement (SC1649c) includes a clause that states that the parent agrees to permit the social worker entry into the home without a warrant, the parent(s) may rescind their voluntary agreement at any time.
  •  
  • Dependent children receiving court-ordered Family Maintenance services.
    • Though court report recommendations include the order that the social worker be allowed to enter the home at any time without a warrant, the worker should not force entry into the home, if the parent refuses to comply with the order. 
      • Action for remedy is to apply for a Home Entry Order in consultation with County Counsel.

Home Entry Orders are not necessary for entering a foster home, group home, FFA home or community care facility to interview a dependent child. 

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Valid Consent to Enter a Home  

The social worker tries to obtain consent to enter the home from the parent, legal guardian or a person with authority. Coercion or pretense cannot be used to gain access into the home. Documentation of the facts, which show that consent was given, must be entered into the CWS/CMS Contact notebook.

There are two types of legal consent to enter a home: actual and implied.

Actual Consent

  • Actual consent is normally given verbally.

Examples of verbal consent are, “Yes, you may enter my home,” “Come in,” or “Yes, you may speak with my child.”

Implied Consent

  • Implied consent is normally manifested by the behavior of the parent.
  • A typical example of implied consent would be the parent who simply waves you into the home after the social worker asks to enter.
  • When implied consent is given, the social worker attempts to confirm the consent by asking something such as, “You don't mind if I come in, is that right?”
  • A parent's failure to object to entry or search is not sufficient for implied consent. The parent must make some demonstrative gesture that indicates consent for the social worker to enter the home.

Points Applicable to Consent

  • The parent must consent not only to the social worker entering the home but, also, to the social worker seeing and speaking with the child.
  • If the parent consents to the social worker entering the home, but does not consent to a visual inspection of the child for bruises or does not consent to an interview of the child, then the social worker lacks valid consent to interview or inspect the child.
  • Consent may be withdrawn, either expressly or by implication, by the parent.
  • Consent obtained by duress or coercion is not valid sent (Schneckloth v. Bustamonte (1973) 412 U.S.218,227). Coercion may exist if the social worker causes the parent to believe that the child will be taken into protective custody, if the parent refuses to let the social worker enter the home.
    • If a parent states words to the effect that they are only letting the social worker enter because they believe the social worker will take his/her child away, if they do not allow the worker entry, then the worker should remind the parent that the worker is not threatening to remove the child and, again, confirm, "Are you giving me permission to enter and see the child?"
    • The social worker cannot use subterfuge or ruse. The social worker must tell parents the real reason for entry and search, which is to check on the welfare of the child.

  • The social worker is not required to inform the parent of the parent's right to refuse consent (Schneckloth v. Bustamonte (1973)412U.S.218,230). Ignorance on the part of the parent about the court order requirement does not nullify consent or equate with duress or coercion.
  • A spouse may consent to entry even if the other spouse object to the entry. (U.S. v. Matlock (1974)415 U.S.164)
  • In the unlikely event that the law enforcement officer tells the social worker that he/she plans to enter the home without consent, exigent circumstances or home entry orders, the social worker should tell the law enforcement officer that he/she will wait in his/her car while law enforcement conducts the search. The social worker should notify his/her supervisor upon returning to the office.
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Documentation  

The social worker documents in a CWS/CMS contact entry:

  • All facts which show that consent to enter the home was given.
  • All pertinent information relating to exigent circumstances.

In the unlikely event that the social worker becomes the subject of a civil lawsuit by a parent whom claims unlawful entry, the social worker's documentation of the consent obtained or exigent circumstances becomes important evidence in defending the social worker's actions.

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Who Has Authority to Consent  

The following persons have the authority to give consent to the social worker:

  • A person other than the parent or legal guardian may consent to the social worker entering the home, if the person has “apparent authority” to do so. Generally, the person giving consent must live at the residence or appear to reside there, be age 18 or older and possess competent mental ability and language skills. The social worker must have a good faith belief that the person has authority to consent to entry.
  • If the residence is shared with an adult co-occupant, the co-occupant may consent to entry and search of “common areas” (living room, kitchen, common bathroom, garage, etc.) but not private areas belonging to others (bedrooms, private bathrooms).
  • Generally, a young child cannot consent to entry and search of the parents' home. However, an older child who has “sufficient capacity to consent” may authorize entry. The fact that a young child has called the police does not mean the same child can consent to entry; however, the child's call may provide the basis for determining that exigent circumstances exist to enter the home.
  • A babysitter or caretaker who resides in the family home may authorize entry into common areas or the child's room, if the babysitter or caretaker has apparent authority to consent.
  • Motel managers/owners/maids/janitors cannot consent to entry into a rented motel room.
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What Are Exigent Circumstances  

The same emergency factors that would justify removal of the child from the home constitute exigent circumstances. That is, that the child falls under the description of WIC § 300. The social worker or law enforcement officer must possess information at the time of the removal that establishes reasonable cause to believe the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.

Other instances that may constitute exigent circumstances include the following:

  • Danger that evidence will be lost or destroyed.
  • Danger that the parent or related party may abscond with the child.
  • Observations the social worker makes at the front door.
    • These observations include signs of:
      • Physical abuse or mental distress that the social worker can objectively specify.
      • Admission by the parent that the parent has abused or neglected the child.
      •  Unsafe condition of the home.
      •  A parent or caretaker being under the influence of alcohol or a controlled substance.

For further information, see Taking a Child into Temporary Custody.

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Exigent Circumstances Standards and Parameters in Dependency Investigations  

There are three exigent circumstance standards that govern dependency investigations.

  1. Exigent circumstances which justify entry into a home without a court order are those circumstances that support a reasonable belief that there is an "imminent and substantial threat" to the child's life or health. In other words, a situation is exigent if the totality of the circumstances indicates there is a need to protect and preserve life or avoid serious bodily injury.
       
  2. Exigent circumstances which justify a law enforcement officer placing a child into temporary custody are those circumstances in which a the law enforcement officer has reasonable cause to believe that:
    • The child is a person described by any section of the Welfare and Institution Code (WIC) § 300 and
      • The child has an immediate need for medical care, or
      • The child is in immediate danger or physical or sexual abuse, or
      • The physical environment or the fact that the child is left unattended poses an immediate threat to the child's health or safety. (WIC § 305)
       
       
  3. Exigent circumstances that justify a social worker placing a child into temporary custody are those circumstances in which a social worker has reasonable cause to believe that:
    • The child is a person described by WIC § 300 (b) or (g) and
      • The child has an immediate need for medical care, or
      • The child is in immediate danger of physical or sexual abuse, or
      • The physical environment or the fact that the child is left unattended poses an immediate threat to the child's health or safety. (WIC § 305)

The scope of intrusion by the social worker must be limited to that which is reasonably necessary to avert the specific imminent threat.

Any delay in response time will most likely negate exigent circumstances, unless additional information discovered at the scene creates new exigent circumstances. Further, if the social worker initially decides to leave the child in the home pending some form of agency case review, and later decides that removal is necessary, the social worker must obtain a protective custody warrant unless new exigent circumstances exist.

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Criteria for Issuing a Home Entry Order  

The juvenile court may only issue a home entry order if all of the following exist:

  • There is a reasonable cause to believe that a child is a person described by WIC § 300, and
  • There is reasonable cause to believe that the child is in imminent danger of serious physical harm and
  • The scope of the intrusion is necessary to avert the harm.
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What Actions May Be Taken with a Home Entry Order  

A juvenile dependency court entry order (form SCZ835) is a written order by a Superior Court Judge authorizing a law enforcement officer and a social worker to enter and search a residence in order to:

  • Locate a child.
  • See and interview a child.  
  • Visually inspect a child.
  • Conduct an investigation to determine whether child welfare services should be offered to a family.
  • Conduct an investigation to determine whether proceedings in the juvenile court should be commenced pursuant to WIC § 300.
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Alternatives to Seeking a Home Entry Order  

Social workers must carefully consider the following alternatives before seeking a home entry order:

  • Consent to Enter

Attempt to obtain valid consent to enter from the parent by using the power of persuasion.

  • Exigent Circumstances

Consider whether “exigent circumstances” exist to justify entry into the home without a home entry order.

  • See the Child Outside of the Home

Ask permission from the parent to see and interview the child outside of the home; for instance, as a compromise, on the porch or in the yard, at a neighbor's home, at a local park, etc.

  • Observe the Child from the Doorway of the Home

At a minimum, the social worker can ask to see the child from the doorway, so an assessment can be made as to the urgency of the situation. The social worker notes everything that can be seen from the doorway (i.e., demeanor and physical condition of the child, physical condition of the home, demeanor and physical condition of the parent, demeanor and physical condition of siblings or other persons in the home, etc.)

  • Explain the Entry Order option to the Parent

If a parent refuses to permit the social worker to enter the home or see or speak with the child, the social worker informs the parent that:

    • The worker is required by law to investigate reports of child abuse and neglect (WIC § 328).
    • If the social worker is not allowed to see and speak with the child, the law authorizes the social worker to request a judge to issue an entry order and that, if the judge issues the entry order, the social worker will return to the home with the entry order and law enforcement to enter the home.
  • Enlist the Assistance of Law Enforcement

Request assistance from law enforcement officials to obtain valid consent to enter the home. Use a cell phone at the scene or make the call from another location, as the situation requires. The law enforcement officer can determine whether the parent is on probation or parole and subject to a search and seizure order. The law enforcement officer can also independently seek a search warrant, if deemed appropriate under the circumstances.

  • Interview the Child at School

Penal Code § 11174.3 authorizes a social worker or law enforcement officer to interview a child at school without parental consent.

Consider filing an out of custody § 300 Petition to seek juvenile court jurisdiction over the child.

  • Citation or Bench Warrant

Consider filing a § 300 Petition and an application asking the juvenile court to issue a citation directing the parent to appear in court with the child. The court may issue a warrant for the arrest of the parent, if issuance of a citation "will probably be ineffective." (WIC § 338-339)

  • Protective Custody Warrant

Consider filing a § 300 Warrant Petition and an application asking the juvenile court to issue an order directing law enforcement to place the child in temporary custody pursuant to WIC § 340.

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Home Entry Order Requirements  

It is required that a home entry order:

  • Be for a specific purpose.
  • State the statutory ground on which it is based.
    • Home Entry Orders may only be issued based on probable cause to believe that the child is a person described by WIC § 300.

  • Describe with particularity the person and place to be searched.
  • Be supported by an affidavit which is included in the Order.
  • Be signed and dated by a judge.
    • Home Entry Orders must be signed by a Superior Court Judge. Commissioners, referees and judge pro tems cannot issue search warrants.

  • Be filed with the court.

The home entry order requirements apply even if a child is already a dependent of the court, unless the court has authorized entry into the home without a warrant, the parent has given consent or exigent circumstances exist.

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Procedures for Obtaining a Home Entry Order  

The social worker conducting an investigation of child abuse or neglect:

The DFCS Petition Specialist:

  • Determines that a home entry order may be necessary.
  • Consults with County Counsel Child to determine whether there are legal grounds for obtaining a home entry order.
  • Prepares a draft of the WIC § 300 or 387 Warrant Petition, if County Counsel concludes that there appear to be legal grounds for obtaining an order.
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Completing the Application and Declaration in Support of a Home Entry Order (SCZ835)  

The social worker completes the Application and Declaration in Support of: Order Authorizing Entry into Home (SCZ 835). (The SCZ835 is also used when filing an Application for an Investigatory Medical Exam or for a Protective Custody Warrant.) The DFCS Petition specialist is available to assist with completing the form. To complete the SCZ835 for a Home Entry Order, the social worker:

  • Fills out all blank fields in at the top half of the front page. These fields include:
    • Social Worker’s Phone, DFCS # and Worker #.
    • The child’s name.
    • The Petition No.
    • The Court Department No.

  • Marks the box Order Authorizing Entry Into Home on top half of the front page.
  • Prints his/her name as the Petitioner.
  • Checks the third box under Section 1, Petitioner’s Professional Qualifications.
  • Checks box (d) under Section 2, Child’s Status, if the child is not a dependent.
    • If the child is a dependent, check the appropriate box (a) or (b) or (c).

  • Checks the box for Section 5, Request for Order Authorizing Entry into Home.
  • Does not check box for Section 3 or Section 4.
  • If there is additional information, checks Section 6, Additional Information and attaches pages.
  • Completes Section 7.
  • Under Findings and Orders on the SCZ835, the social worker marks:
    • Box 2(c), Protective Custody
    • Box 3(c) to indicate that a protective custody warrant shall be issue.
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Executing a Home Entry Order  

“Execution” or “service” of the order is the act of making entry into the premises named on the court order and conducting the search for which the order was issued. Following are several restrictions regarding the execution of the home entry order:

  • The court order must be executed immediately.
  • The Order may be not be reissued, and a new Home Entry Order must be sought after the original Order expires.
  • Probable cause must exist at the time of issuance and execution. If circumstances change and there is no longer a need for entry into the home, the order cannot be executed.
  • The order must be executed between 7:00 a.m. and 10:00 p.m. absent authorization from the judge for night service.
  • There can only be one entry per order; the social worker cannot leave and come back later to enter the home, again.
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Joint Response with Law Enforcement   Joint Response: DFCS and Law Enforcement
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Source Material  
PDF "Protocol for Obtaining Protective Custody Warrants, Orders for Investigative Medical Exams and Home Entry Orders in Suspected Child Abuse or Neglect Investigations" - Updated September 2004
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Other References  
PDF CWS/CMS Training Guide: Contact Notebook
bullet2 Joint Response: DFCS and Law Enforcement
bullet2 300 Petition
bullet2 Taking a Child into Temporary Custody
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