Their power to divide families based on shaky evidence has largely gone unchecked by courts—until a March 30 opinion was delivered by judges of the United States Sixth Circuit Court of Appeals, which has jurisdiction over Michigan, Kentucky, Ohio and Tennessee.
Setting a new precedent, Judge Eric L. Clay declared that the constitutional prohibition on unlawful seizures does in fact apply to social workers who interrogate children without a warrant or parental consent during child abuse investigations.
Filed in February 2017, the case behind the precedent was brought by Holly Schulkers—a Kentucky mother who was barred for two months by the Kentucky Cabinet for Health and Family Services (CHFS) from being alone with her children because she tested “presumptive positive” for opioids just before giving birth to her youngest child on Feburary 9, 2017. She told social workers that she does not use drugs. The test results themselves contained a disclaimer stating they “should not be used for non-medical purposes,” according to Schulkers’ amended complaint.
Despite that, a CHFS supervisor questioned Schulkers, asking, ““How did the heroin get into your system?” and saying, “Let me get the help you need so you can be a better mother to your children,” the amended complaint claims.
Within hours of the initial test, additional samples demonstrated the first to be a false positive—likely attributable to the chips Schulkers had eaten earlier that contained poppy seeds. But CHFS’s so-called Prevention Plan, requiring her to be accompanied by approved “supervisors” while around her children, remained in place.
A week into the restrictions, Schulkers requested to be released from the Prevention Plan. The CHFS social worker, now a defendant and appellant in the case, refused—and then proceeded to visit three of Schulkers’ children at their elementary school. Without a warrant or parental permission, the CHFS social worker interrogated the children about “mommy using drugs.”
After this event, Schulker wouldn’t be released from the Prevention Plan until April 7, 2017.
The case calls into question whether government-employed social workers can be sued for actions in their professional capacity that allegedly violate the Fourth Amendment—the constitutional prohibition on unlawful searches and seizures—as well as substantive and procedural due process. These are two key constitutional protections for fair treatment within the legal system.
According to the recent opinion, social workers can be and will be—at least by Schulkers, as the case continues.
“We are happy to the max,” she told KyForward. “We are thrilled at this victory for us.”
For her attorney Paul Hill, the case was an uphill battle despite strong evidence demonstrating the social workers’ “egregious conduct,” as he described it to Filter. “The law out there on what social workers can do was almost non-existent. It was a challenge to get over that hurdle.”
And that’s despite the hundreds of thousands of children separated from their families each year. More than one-third of separated children were removed due to alleged parental substance use, according to a 2019 study of Adoption and Foster Care Reporting System data. Unlike Schulkers, women of color, specifically Black women, are most targeted by child services interventions, often for allegations of drug use, one 2018 study outlined.
The Sixth Circuit’s ruling is “significant going forward,” Hill said. “Social workers will have to have a reasonable basis, at least in the Sixth Circuit, to go in and interrogate children at schools. They can’t do it on a whim.”