Is it legal for a school official to interrogate your child?

This is a question I have been asked too often lately from extremely anxious clients–parents who find themselves the target of a 51B investigation by the Department of Children and Families and, in some cases, the focus of a criminal investigation by the local police department and/or district attorney’s office.

In two recent cases involving children with special needs–one with autism and the other with cerebral palsy–troubling statements were made at school by the children alleging the use of physical discipline by their father. In one case, some redness was allegedly observed on the child’s face where she was allegedly slapped. And without parental consent, a school official questioned the child. And most, if not all of the questions were what lawyers call “leading” questions, not open-ended questions, such as “Did your father do this to you?,” “Does your father ever hit you?,” “How often does your father hit you?,” “Is that how you got that mark on your face?,” “Does your father ever slap you?,” “Does your father spank you with a belt?,” “Does your father ever touch you?” “Does he ever touch you in your private areas?” etc. And before the parents knew it, a social worker from the Department of Children and Families was at the school further interrogating their child and then at their house questioning them. And suddenly, the families lives were turned upside down. In both cases, the truthfulness,extent or intent of the statements were highly questionable, and in one of the cases, the physical discipline was solely in the context of trying to keep the child from harming herself and one of the parents. In the other case, there was an admission of a slap on the face of an out-of-control child but that was all.

Is this legal? What about the right of the parent to consent to such questioning? What about Miranda Rights?

Recently, the Supreme Court heard a case involving this very issue. Alford v. Greene involved a police officer and a social worker who interrogated a speech-delayed child for two hours, which is how long it took before the poor girl finally “confessed” that her father sexually abused her. Here’s a quote from the respondent-child’s Supreme Court brief:

“The State’s interview approach, with a young,fragile, speech-delayed child, forced an involuntary and an unreliable admission to parental abuse out of desperation to regain her freedom from the seizure. See Greene, 588 F.3d at 1017. Assuming that every child witness will eventually “break” is hardly a mechanism for achieving “accuracy” in fact-finding. Lassiter v. Dept. of Social Servs. of Durham Cty., 452 U.S. 18, 27 (1981) (“[a] parent’s interest in accuracy and justice … is … a commanding one”).”

Unfortunately, the Supreme Court punted on the critical issue before it. Why? Quoting from a post by Jennifer-Clark of the SCOTUS blog:

“The Ninth Circuit agreed that the interview violated S.G.â’s Fourth Amendment rights, but it held that Camreta and Alford were entitled to qualified immunity. And although they had ultimately prevailed at the Ninth Circuit, Camreta and Alford filed a petition for certiorari, asking the Supreme Court to grant review to clarify the underlying Fourth Amendment issue. However, S.G. did not file a cross-petition seeking review of the qualified immunity ruling.

In an opinion by Justice Kagan, which was joined by the Chief Justice and Justices Scalia, Ginsburg, and Alito, the Court vacated the Ninth Circuitâ’s decision in part and remanded. The Court then declined to rule on the underlying Fourth Amendment question, however, finding the matter moot.”

What’s the bottom line, then? It’s this: In Massachusetts, school officials and social workers can interview your child without your consent and without giving your child Miranda Warnings as long as the questioning is not specifically under the direction of a law enforcement agency. As the Massachusetts Supreme Judicial Court held in Commonwealth v. Snyder:

“There is no authority requiring a school administrator not acting on behalf of law enforcement officials to furnish Miranda warnings. Even if we were to assume that, during the questioning in the principal’s office, the environment was coercive because Snyder was in custody (or because his freedom was significantly restricted) and that, therefore, Miranda warnings would be required if the questioning had been by the police (see Commonwealth v. Bryant,390 Mass. 729, 737 [1984]), Principal Day and Assistant Principal Canning were not law enforcement officials or agents of such officials. The Miranda rule does not apply to a private citizen or school administrator who is acting neither as an instrument of the police nor as an agent of the police pursuant to a scheme to elicit statements from the defendant by coercion or guile. See Commonwealth v. Allen,395 Mass. 448, 453-454 (1985); Commonwealth v. A Juvenile, supra at 278-279. The fact that the school administrators had every intention of turning the marihuana over to the police does not make them agents or instrumentalities of the police in questioning Snyder.”

The take away: you should take any investigation or inquiry by DCF or the police about alleged physical or sexual abuse–no matter how ridiculous or incredible it sounds–extremely seriously and do not answer questions about the allegations or allow further questioning of your child without first consulting with an attorney. There’s simply too much at risk. You should, however, prepare yourself for perhaps the most unpleasant journey as a parent. Take a deep breath and write down the names and contact information of everybody you know that may be able to disprove the allegations of child abuse or neglect. Neighbors, relatives, pediatricians, treatment providers, school bus drivers etc. And to put this in perspective, just one slap or spank–no matter how well-intentioned–may be considered as child abuse by DCF and/or the police.

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