In the Interest of: Y.W.-B. Apl of: J.B.

[J-39A-2021 and J-39B-2021] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN THE INTEREST OF: Y.W.-B., A MINOR : No. 1 EAP 2021
:
: Appeal from the Order of Superior
APPEAL OF: J.B., MOTHER : Court entered on October 8, 2020 at
: No. 1642 EDA 2019 affirming and
: reversing the Order entered on June
: 11, 2019 in the Court of Common
: Pleas, Philadelphia County, Family
: Division at No. CP-51-DP-0002108-
: 2013.
:
: ARGUED: May 19, 2021
IN THE INTEREST OF: N.W.-B., A MINOR : No. 2 EAP 2021
:
: Appeal from the Order of Superior
APPEAL OF: J.B., MOTHER : Court entered on October 8, 2020 at
: No. 1643 EDA 2019 affirming and
: reversing the Order entered on June
: 11, 2019 in the Court of Common
: Pleas, Philadelphia County, Family
: Division at No. CP-51-DP-0002387-
: 2016.
:
: ARGUED: May 19, 2021
CONCURRING AND DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: December 23, 2021
I concur in the result. Specifically, I agree with the majority’s conclusion the
juvenile court’s order directing appellant to comply with a child welfare home safety
assessment lacked a sufficient basis, and the Superior Court therefore erred in
concluding the record supports a finding of probable cause. I appreciate the majority’s
scrupulous attempt to pronounce clear parameters of probable cause around the domain
of child protection, where bright-line standards are scarce, and I underscore my thorough
agreement with the majority’s conclusion the facts of this record do not establish probable
cause under any type or quantum of evidence. However, I view substantial elements of
the majority’s reasoning as incongruous, and potentially deleterious to the development
of more context-specific, and arguably more appropriate, jurisprudence. But, upon this
record of insufficient facts, the majority makes significant pronouncements of child welfare
law and practice regarding issues neither properly before this Court nor, in my view,
necessary for resolution of this case; these statements may hamper county agencies’
ability to effectively assess and serve vulnerable families. I therefore dissent from the
majority’s analysis.
There is no dispute here regarding whether the Child Protective Services Law
(CPSL) and the related regulations governing the Department of Human Services and
county children and youth agencies must be enforced within the constitutional limits
imposed by the Fourth Amendment to the United States Constitution. The parties, the
lower courts, over a decade of jurisprudence governed by the Superior Court’s decision
in In re Petition to Compel Cooperation, 875 A.2d 365 (Pa. Super. 2005), and each of the
federal circuit courts confronting constitutional claims related to child protection
investigations, 1 all agree the Fourth Amendment’s protection against unreasonable
searches requires a showing of reasonable government need to compel inspection of a
home by an agency acting under a child protection statute. We ostensibly granted
discretionary review to consider whether the Superior Court below granted the
1 See, e.g., Wojcik v. Town of N. Smithfield, 76 F.3d 1 (1st Cir. 1996); Tenenbaum v.
Williams, 193 F.3d 581 (2d Cir. 1999); Good v. Dauphin Cty. Soc. Servs. for Children &
Youth, 891 F.2d 1087, 1093 (3d Cir. 1989); Wildauer v. Frederick Cty., 993 F.2d 369, 372
(4th Cir. 1993); Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 407-
08 (5th Cir. 2002); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003); Calabretta v. Floyd, 189
F.3d 808 (9th Cir. 1999); Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240-42 (10th
Cir. 2003).
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 2
Philadelphia Department of Human Services (DHS) “sweeping authority to enter and
search a private home” in violation of state and federal constitutional protections,
allegedly without a link between the General Protective Services (GPS) report and
anything particular inside the home. Interest of Y.W.-B., 243 A.3d 969, 969-70 (Pa. 2021)
(per curiam). But, the question of what measure of probable cause applies to an
administrative search sought by an agency performing a child protection investigation is
an issue of first impression for this Court, and the arguments advanced by the parties
actually focus on whether the record before the trial court provided a basis to meet any
standard of probable cause at all. 2
I. The Superior Court’s decision in Petition to Compel
The thorny issue we confront here was previously considered by the Superior
Court in Petition to Compel. The question before that court was broad: whether
constitutional protections against unreasonable searches applied at all to home
inspections sought by a children and youth agency pursuant to the CPSL. See Petition
2 Preliminarily, the question of whether appellant preserved her state law claim under
Article I, Section 8 of the Pennsylvania Constitution circumscribes the scope of my
analysis. Although, as the majority indicates, appellant claimed a violation of both federal
and state provisions in the trial court and Superior Court, see Majority Opinion at 9-10
n.10, appellant’s contention in this Court is that the Pennsylvania Constitutional provision
affords greater protection than the Fourth Amendment does, and consequently certain
probable cause exceptions developed under the federal law do not apply. See
Appellant’s Brief at 42-54, citing, inter alia, Commonwealth v. Edmunds, 586 A.2d 887,
888, 897-98 (Pa. 1991) (declining to adopt federal good-faith exception to the
exclusionary rule). However, DHS argues appellant’s expansion-of-protection argument
is waived under Commonwealth v. Bishop, 217 A.3d 833, 840-42 (Pa. 2019), in which we
held preservation of a claim seeking departure from federal constitutional law requires an
appellant to assert and develop — to the trial court and on intermediate appeal — why
the state constitutional provision at issue should be interpreted more expansively than its
federal counterpart. Here, appellant did not do so, and, consistent with Bishop, I therefore
view her departure claim as waived, and regard her state law claim as coterminous with
a claim under the Fourth Amendment. Id. at 838, 841. As a result, to the extent necessary
for resolution of this case, I view federal Fourth Amendment jurisprudence, and our cases
interpreting Article I, Section 8 as coterminous with its federal counterpart, as appropriate
binding precedent.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 3
to Compel, 875 A.2d at 374. Noting the absence of Pennsylvania law on the subject, the
panel in Petition to Compel, like the majority in the present case, drew significant guidance
from Good v. Dauphin County Social Services for Children and Youth, 891 F.2d 1087 (3rd
Cir. 1989), and Walsh v. Erie County Department of Job & Family Services, 240 F. Supp.
2d 731 (N.D. Ohio 2003), both federal cases, respectively reversing and denying
summary judgment on Section 1983 civil rights claims regarding child protection searches
performed without a warrant. 3 Id. at 375-79. Good and Walsh each held the Fourth
Amendment applied to the searches performed under child protection statutes, although
neither addressed the merits of a claim probable cause was lacking, nor did they consider
situations where a warrant had issued or a pre-deprivation hearing had been held.
Observing, based upon Good and Walsh, that Fourth Amendment and Article I, Section
8 principles applied to child protection investigations, as well as the primacy of the privacy
interest in one’s home, and the agency had provided only a single allegation of medical
neglect unconnected to the child’s home environment, the Petition to Compel panel
vacated the lower court’s ex parte order granting the home inspection. The panel
pronounced as the law of the Commonwealth that constitutional protections against
unreasonable searches require a children and youth agency to “file a verified petition
alleging facts amounting to probable cause to believe that an act of child abuse or
neglect has occurred and evidence relating to such abuse will be found in the
3 See 42 U.S.C. §1983. Though effective for answering the broad question then before
the panel in Petition to Compel, the utility of these federal cases accedes to some
important limits discussed infra, i.e., they assume the truth of the plaintiffs’ allegations of
objectively egregious conduct (an assault by police to compel an investigation of poor
housekeeping in Walsh, and a strip search based upon an anonymous report of bruises
in Good), and determine the agents were not entitled to qualified immunity, because a
factfinder could conclude the government actors performing the searches could not
reasonably believe they had authority to search plaintiffs’ homes without a warrant or on
the basis of exigency. See Good, 891 F.2d at 1095-96; Walsh, 240 F. Supp. 2d at 744,
749-50, 758-60.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 4
home.” Petition to Compel, 875 A.2d at 377 (emphasis added). The panel’s rationale
and holding are endorsed by the majority and both parties in the present appeal. See
Majority Opinion at 30-32, Appellant’s Brief at 39-40, Appellee’s Brief at 16, 22 n.3.
I make these observations regarding Petition to Compel in response to appellant’s
central claim the rule of law articulated by the Superior Court’s decision below allows for
a sweeping, unlimited search of a private home “not compatible with Fourth Amendment
jurisprudence” because the court failed to confine its holding to the particular definition of
“general protective services” provided in the CPSL regulations. Appellant’s Brief at 15-
16, 20-21, 32, 40-41, 53. The “rule of law” to which appellant refers is a nearly word-for-
word reiteration of the accepted “rule of law” from Petition to Compel: “an agency may
obtain a court order compelling a parent’s cooperation with a home visit upon a showing
of a fair probability that a child is in need of services, and that evidence relating to
that need will be found inside the home.” Id. at 16-17; Interest of Y.W.-B., 241 A.3d
375, 386 (Pa. Super. 2020) (emphasis added), citing Petition to Compel, 875 A.2d at 377-
78. In adapting this minimally-nuanced version of the holding from Petition to Compel
regarding a child abuse investigation under the CPSL, to the type of “general protective
services” assessment involved in this case, the panel below explicitly incorporated this
Court’s definition of “probable cause,” as well as the CPSL’s definition of “general
protective services” and relevant regulations. See id. at 383-84, quoting, inter alia,
Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (defining “probable cause” as a
common-sense determination of “fair probability” evidence would be found in a particular
place); id. at 384, quoting 23 Pa.C.S. §6303(a) (defining “general protective services” as
“‘[t]hose services and activities provided by each county agency for cases requiring
protective services, as defined by the department in regulations’”) and 55 Pa. Code
§3490.223 (further defining “general protective services”); id. at 384 n.8, quoting 55 Pa.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 5
Code §3490.4 (defining “protective services” to include child abuse and general protective
services). It therefore appears appellant’s entire argument takes the Superior Court’s
reference to a child “in need of services” fully out of context, and appellant would be
satisfied if the panel instead had merely referred more explicitly to a child “in need of
protective services.” Consequently, I view appellant’s challenge to the Superior Court’s
“rule of law”, which comprises the issues upon which we granted allocatur, as without
merit.
I further observe that neither DHS nor its amicus argues in favor of implementing
the “social worker exception to the Fourth Amendment” the majority rejects. Relatedly, I
cannot agree with the majority’s casting of Judge Beck’s famous concurring opinion in
Petition to Compel — joined, notably and unusually, by both panel members in the
majority — as generally irrelevant, aside from its recognition the facts supporting probable
cause for a home inspection will likely be different from those in a criminal investigation.
Majority Opinion at 32-33. In my view, the Beck Concurrence potently declared “simply
requiring an agency to show ‘probable cause’ as it is defined in the criminal law is not
enough[,]” and encouraged close consideration of the nature and context of each
scenario, along with the fullest of all possible disclosures of relevant information by
children and youth agencies requesting to compel a home inspection, in light of the
significantly different purposes and goals of child protection versus those of law
enforcement. Petition to Compel, 875 A.2d at 380 (Beck, J., concurring) (emphasis
added).
Thus, I would not minimize the significance of the Beck Concurrence. Judge
Beck’s astute warning to avoid applying “the standard notion of probable cause in criminal
law” to child protection cases is not without authoritative support, and indeed, it reflects
important, diverging federal court probable cause jurisprudence involving non-criminal
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 6
investigations. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873, 875-76, 877-78 & nn.4
& 6 (1987) (administrative search requires reasonableness only, rather than quantum of
concrete evidence to support probable cause; warrantless search of probationer’s home
was reasonable where state’s Department of Health and Social Services regulatory
scheme provided “special needs” for the supervision of a special population “beyond the
normal need for law enforcement[ which] make the warrant and probable-cause
requirement impracticable”), quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985)
(Blackmun, J., concurring); Ferguson v. City of Charleston, 532 U.S. 67, 68, 79-80 (2001)
(warrantless, suspicionless search fits “special needs” exception only when “divorced
from the State’s general interest in law enforcement”); Darryl H. v. Coler, 801 F.2d 893,
901 (7th Cir. 1986) (because discretion of caseworker was circumscribed by regulatory
standards and child could refuse to cooperate, child abuse investigation including
inspection of child’s body could be conducted without meeting the strictures of probable
cause or warrant requirement); Tenenbaum v. Williams, 193 F.3d 581, 604 (2d Cir. 1999)
(noting possibility of “special needs” circumstances where warrant and probable cause
would not effectively protect child); Franz v. Lytle, 997 F.2d 784, 791 (10th Cir. 1993)
(“critical distinction[]” between social work and law enforcement “justifies a more liberal
view of the amount of probable cause that would support an administrative search”).
Similarly, I view the distinct features of the individualized and intimately fact-
sensitive civil administration of the CPSL, as compared to the strictly-prescribed principles
of criminal law and procedure utilized to enforce the Crimes Code, as important
considerations — not for the purpose of excusing a proper showing of reasonable or
probable cause — but to competently balance risks of harm to the vulnerable child and
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 7
the sacrosanctity of the family home. 4 After all, despite well-established Fourth
Amendment standards developed through criminal law, we nevertheless continue to
pronounce often fine-grained distinctions between assessments of probable cause
necessary to support an arrest (where the conclusion concerns the guilt of the arrestee),
and probable cause to search (where the conclusions concern the present location of
items sought and their connection with a crime), as well as the not-quite probable cause
(i.e., a reasonably articulable suspicion) required to perform an investigatory stop and
subsequent search. See Terry v. Ohio, 392 U.S. 1; 20-27 (1968) (reasonable suspicion
affords “due weight” to “specific reasonable inferences which [an officer] is entitled to draw
from the facts in light of his experience”; however, “good faith” and “inarticulate hunches”
are insufficient support); see also, e.g., Commonwealth v. Hicks, 208 A.3d 916, 925, 940,
946 (2019) (applying Terry, investigative stop based on officer’s “inchoate and
unparticularized suspicion or hunch” did not satisfy reasonable suspicion standard)
(internal quotations omitted).
I further note the contours of an appropriate Fourth Amendment analysis are, to
some extent, shaped by the General Assembly’s intentional enactments of specialized
laws, with their particularly-defined purposes and elements, which must be considered
when determining whether an adequate quantum of evidence supports the requested
invasion of privacy. See Hicks, 208 A.3d at 954 (Dougherty, J., concurring), quoting
Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (where legislature exercises its exclusive
power to pronounce which acts are crimes and define them, “it is the elements of those
crimes that officers must consider when determining whether there is ‘reasonable,
4 The majority criticizes my analysis here as failing to indicate what evidence might be
required to establish probable cause in the child welfare context. See Majority Op. at 34-
35 n.18. I reiterate that I do not dispute there was insufficient evidence presented in this
case, and also note that I describe several examples to this effect infra, in Section IV of
this opinion.
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articulable suspicion that criminal activity is afoot’”). The Beck Concurrence did not
further expound upon the parameters of probable cause in cases arising under the CPSL,
perhaps due to the panel’s unanimous agreement regarding the dispositively insufficient
record before it. But, in my respectful view, Judge Beck foresaw the pernicious allure of
applying our existing, well-developed criminal law rubric within the context of a child
welfare investigation — exemplified by several problematic assumptions and conclusions
relied upon throughout the majority’s analysis in this case — which risks arriving at
incorrect, plausibly dangerous results.
II. Criminal law and child protection distinctions
The criminal law standards relied upon by the majority, see Majority Opinion at 17-
19, address the constitutional probable cause requirements for obtaining an ex parte
warrant to search for specific evidence of criminal activity to be seized for use in
proving a crime. Analogy to the customized procedural and substantive requirements
developed in response to these particular features of criminal search warrants may be all
that exists in the Commonwealth’s jurisprudence to aid our analysis here, but, in my view,
it is at best an approximate, awkward fit.
A.
First, and foremost, the CPSL is not a criminal statute. It is a civil law statute
administered by the Pennsylvania Department of Human Services (the Department) to
implement and regulate a program of child protection with the stated purpose of, inter
alia, “providing rehabilitative services for children and parents involved so as to ensure
the child’s well-being and to preserve, stabilize and protect the integrity of family life
wherever appropriate[.]” 23 Pa.C.S. §6302(b). “It is the goal of children and youth social
services to ensure for each child in this Commonwealth a permanent, legally assured
family which protects the child from abuse and neglect.” 55 Pa. Code §3130.11. “The
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primary purpose of general protective services is to protect the rights and welfare of
children so that they have an opportunity for healthy growth and development.” 23
Pa.C.S. §6374(a). “Implicit in the county agency’s protection of children is assistance to
parents in recognizing and remedying conditions harmful to their children and in fulfilling
their parental duties more adequately.” Id. §6374(b). To that end, each county is
responsible for administering a program of children and youth social services that
provides, inter alia, “[s]ervices designed to keep children in their own homes; prevent
abuse, neglect and exploitation; and help overcome problems that result in dependency
and delinquency[;]” and “[s]ervices designed to reunite children and their families” if
circumstances require the child’s removal. 55 Pa. Code §§3130.12(c), 3490.231; 23
Pa.C.S. §6373. Of course, referrals to law enforcement may at times arise in such
situations, but, fundamentally, an investigating caseworker is not law enforcement. As
well, although there might naturally be some resistance to a protective services
investigation, the caseworker’s purpose and duty is to render the services necessary to
keep children safe in their own homes. See id.
Unlike our expansive crimes code and detailed Rules of Criminal Procedure, which
together define every possible offense requiring law enforcement with strictly-construed
precision and delineate their consequences and warrant procedures, the CPSL defines
only two circumstances authorizing an agency’s unwanted involvement in family privacy:
when the child is in need of either “child protective services” as a result of child abuse, or
“general protective services” to address additional needs related to potential for harm,
such as neglect. Each of these is broadly defined, and their concepts and protocols
overlap. For example, beyond solely intentional injuries, child abuse calling for “child
protective services” may include omissions in care which create a likelihood of injury,
cause physical neglect (including failure to provide age-appropriate supervision), or
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 10
contribute to a child’s mental illness. See 23 Pa.C.S. §6303. “General protective
services” are those provided by each county agency “for cases requiring protective
services, as defined by the [D]epartment in regulations[,]” id. (emphasis added); the
corresponding regulations’ definition of “protective services” encompasses services both
to “children who are abused” and those “in need of general protective services[,]” 55 Pa.
Code §3490.4. 5
The term “general protective services” includes, most broadly, “[s]ervices to
prevent the potential for harm to a child who [inter alia] [i]s without proper parental care
or control, subsistence, education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals[,]” id. §3490.223. Consequently,
a child may be both the subject of a child protective services report, and also in need of
general protective services. A report of suspected child abuse received by Childline may,
after its initial screening, be assigned to the county agency for assessment as a GPS
report, and a family may also be accepted for general protective services following an
unfounded “CPS” (i.e., child protective services) investigation; conversely, a report
screened-in as meeting GPS criteria may, after assessment, be transitioned to a CPS
case for a child abuse investigation. See 23 Pa.C.S. §6334(f); 55 Pa. Code §§3490.32(g),
3490.59(a), 3490.235(a) (“The county agency shall provide, arrange or otherwise make
available the same services for children in need of general protective services as for
abused children[.]”); PA. DEP’T OF HUM. SERVS., OCYF Bull. No. 3490-20-08, STATEWIDE
GEN. PROTECTIVE SERVS. (GPS) REFERRALS, at 2 (Sept. 11, 2020) (referencing guidelines
for transitioning reports originally assigned as GPS reports to CPS reports). Furthermore,
a report of possible neglect based on, for example, a reporter’s observation a child is
5 See also 23 Pa.C.S. §6303 (defining “protective services” as [t]hose services and
activities provided by the department and each county agency for children who are
abused or are alleged to be in need of protection under [the CPSL]”) (emphasis added).
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 11
unbathed, hungry, and unsupervised, may fit either category or none at all, depending not
only upon the veracity of the particular details provided by the reporter (or lack thereof),
but also the agency’s ability to understand the circumstances — e.g., the child’s age and
ability, whether the incident is isolated, or if there is evidence of further or different
maltreatment 6 — and assess for safety threats and level of risk. See 23 Pa.C.S.
§§6362(e), 6375(c)(2) (requiring use of Department-approved risk assessment process
to evaluate both CPS and GPS cases); 55 Pa. Code §3490.321 (providing standards for
Department-approved risk assessment processes). 7
6 Research compiled by the United States Department of Health and Human Services
indicates children experiencing one form of maltreatment may experience others
simultaneously and are likely to experience recurring neglect. CHILDREN’S BUREAU, U.S.
DEP’T OF HEALTH & HUM. SERVS., CHILD MALTREATMENT 2019 20-22 (2019),
https://www.acf.hhs.gov/sites/default/files/documents/cb/cm2019.pdf.
7 The majority dilutes my disagreement with its statutory analysis by imprecisely
characterizing it as merely based upon “overlap in the definitions of ‘child abuse’ and
‘child neglect.’” Majority Op. at 48 n.23. But my dissent in this regard stems not only from
the particular definitions of these (unquestionably important) terms, but from the
malleable, transferable, context-specific concepts relating to the type of protective
services (i.e., CPS or GPS) employed at a given time in a given case as a result of an
agency’s screening, assessment, or investigatory process — which, by statute and by
regulation, is neither static nor dependent upon the information supplied by the reporter.
Of course, this statutory and regulatory scheme is significantly more complex than the
summary review I provide herein. Its adaptability to an agency’s improved understanding
of the child’s and family’s needs is a critical feature which, in my respectful view, is
dangerously oversimplified by the majority’s use of regulatory provisions divorced from
context to define the services an agency must provide based on how the report is made.
See id.; see also id. at 16. Even a report as seemingly anodyne as potentially failing to
feed a child for eight hours while outside could prove dire in the case of a very young
infant or other especially vulnerable child; such a report is just as readily an allegation the
child is without care necessary for his physical health — i.e., GPS report criteria, see id.
at 16, quoting 55 Pa. Code §3490.223 — as it is reasonable cause to suspect the child’s
development is endangered by his caregiver’s failure to provide the essentials of life —
i.e., CPS report criteria, see id., quoting 55 Pa. Code §3490.11(a); id. at 48 n.23, citing
55 Pa. Code §3490.4 (defining child abuse as including “serious physical neglect”).
Additionally, I note the statutory definition of “serious physical neglect,” differs from the
regulatory definition described by the majority, and includes, as forms of child abuse, the
failure to supervise a child in a manner appropriate for the child’s development and
(continued…)
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Recognizing the Court must render its decision in this case without the contextual
aid of any record development regarding the foundations of the agency’s administrative
or investigatory protocols and risk assessment calculus, I note responsibility for the
particulars of how these screening and assessment practices are employed has been
delegated to the Department by the General Assembly. See id; 23 Pa.C.S. §6303
(defining “[r]isk assessment” as “[a] Commonwealth-approved systematic process that
assesses a child’s need for protection or services based on the risk of harm to the child”);
55 Pa. Code §3490.321(b) (“The Department and counties will review the implementation
of the risk assessment process on an ongoing basis to ensure that the standards
established are consistent with good practice and the results of research.”); id.§3490.321(c) (“The county agency shall implement the State-approved risk assessment
model developed by the Department in consultation with the Risk Assessment Task
Force.”). In this vein, the agency must have some discretion in translating the information
supplied by a reporter, along with any other information revealed through its own
screening and assessment processes, into risk assessment categories such as
“homelessness” and “inadequate basic care.” 8
abilities, as well as failure to provide a child with adequate essentials of life — “including
food, shelter or medical care,” without regard for whether such deprivation is “prolonged
or repeated” as the majority insists. 23 Pa.C.S. §6303(b.1).
8 Guidance from the Pennsylvania Department of Human Services’ Office of Children,
Youth and Families provides subcategories of need to be used for the dual purposes of
identifying the primary concerns to address and allowing for consistent tracking of data.
See PA. DEP’T OF HUM. SERVS., OCYF Bull. No. 3490-20-08, STATEWIDE GEN. PROTECTIVE
SERVS. (GPS) REFERRALS, at 8 (Sept. 11, 2020). The subcategories, which include
“homelessness” and “inadequate basic needs” related to clothing/food/hygiene,
education, health care, nurturing/affection, and shelter/housing, are not exhaustive or
rigidly applied, but “nuanced” examples are “provided solely to give direction to staff[.]”
Id. at 8, 10-11.
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Here, I am troubled by the majority’s parsing of the information supplied by the
reporter and the categories of risk identified by DHS without regard for the Department’s
evidence-based process. See id. §3490.321(b), supra. Specifically, I disagree with the
majority’s conclusion the DHS caseworker’s testimony — that she located the family’s
address and observed the arrival of appellant and the children — “confirmed” the family
was not homeless, and thus any risk of homelessness was “rendered moot.” Majority
Opinion at 39. First, I note that, while the Petition to Compel Cooperation (Petition)
indicates appellant ushered the children into the home while DHS was there, the
caseworker herself specifically refuted making that observation, as follows:
[Appellant’s counsel] Q. You testified that the allegations were
homelessness and inadequate care. You said you went out to the home;
is that correct?
[DHS] A. I went out to the home; yes, I did.
Q. You saw the family go into a home?
A. No, I did not. We were standing outside the entire time.
* * *
Q. The facts alleged in the petition are that the father was at the home,
and that the mother arrived at the home shortly after that and ushered the
children into the home; is that correct?
A. I do not recall that, no.
Q. All right. I think your counsel can show you a copy of the petition? Were
you there?
A. That's fine, but I -- I filed the petition, and I recall being with the family,
and that's not what occurred. So, something could be in the petition, but
that’s not what I stated.
Q. The petition might be false?
A. That could be. It could be a mistake, but that's not what occurred.
Q. All right. You have an address that you went out to; is that correct?
A. Yes, I did.
Q. Was the family living at that address?
A. I have no idea if they were living at the address because I was not
allowed access into the home.
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N.T. 6/11/2019 at 8-10; see also Petition to Compel Cooperation, 5/31/2019, at ¶ 3(l).
Second, other nonconflicting evidence indicates the address was the same residence
known to DHS and the trial court from appellant’s prior dependency matter, which was
confirmed by the caseworker through a public welfare records search. See N.T.
6/11/2019 at 9-12; Petition at ¶ 3(k). But there is nothing in the record to confirm that any
person did or could occupy or enter the address prior to DHS’s completion of its court-
ordered home assessment. In my view, just as the Court cannot affirm a finding of
probable cause on these scant facts, the Court should not conclusively terminate, as a
matter of law, a fact-intensive DHS investigation where more information may be
available, but the evidence presented in the midst of an investigation is insufficient to
warrant home entry. An individual’s presence at the address on file for public welfare
purposes, without more, is not proof the address is habitable or that she lives there.
Likewise, I disagree with the majority’s dismissal of DHS’s identified concern for
“inadequate basic care” as “hyperbole,” and its determination that the “only potentially
viable allegation” remaining (after ruling out homelessness) was an anonymous report
one child may not have been fed over a period of several hours during a protest event
which had no connection to conditions of the home. Majority Opinion at 38-41.
Regardless of whether appellant did or did not feed the child that day, safe and habitable
shelter remains an essential aspect of providing “basic care” to a child. See supra n.7.
B.
Although reports provided by mandated reporters must include the reporter’s
identity and a presumption of good faith, see 23 Pa.C.S. §§6313(b)(8), 6318(c), the CPSL
also encourages “[a]ny person” to make a report “if that person has reasonable cause to
suspect that a child is a victim of child abuse[,]” id. §6312; see also id. §6302 (one purpose
of CPSL is “to encourage more complete reporting of suspected child abuse”). The
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 15
agency must accept and screen all reports “regardless of whether the person identifies
himself.” 55 Pa. Code §3490.11; see also id. at §3490.54 (agency “shall investigate and
make independent determinations on reports of suspected child abuse” “regardless of
whether or not the person making the report identified himself”) (emphasis added). As a
result, even anonymous or nonspecific reports are where an agency’s investigation must
begin. Unlike law enforcement, caseworkers do not police and patrol; their investigations
do not typically start with knowledge of any objective facts, as law enforcement does when
a crime occurs. See, e.g., E.Z. v. Coler, 603 F. Supp. 1546, 1559-60 (N.D. Ill.1985)
(“When police are investigating a crime, investigation is generally after the fact and no
immediate threat to the life of a dependent child is present. . . . [R]equiring child abuse
investigators to meet a probable cause standard or obtain a warrant ignores the difficulty
of collecting any evidence other than anonymous tips and unverified reports in child abuse
investigations.”), aff’d sub nom., Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).
Similarly, the respective roles of confidential informants in police investigations and
anonymous reporters of child maltreatment are not equivalent. A confidential informant
receives some benefit based on the level of detail and reliability of information provided
in cooperation with the police. A reporter’s reliability does not stem from his relationship
with the investigator, however, but from his relationship to the child and family — requiring
careful balancing to preserve that relationship, for the sake of the child and family as well
as the investigation — and, as a result, may trigger greater reluctance to provide details,
including his identity.
For these reasons and others, I disagree with the majority’s determination DHS
has no basis to maintain the confidentiality of a reporter whose unsolicited information at
the starting point of an investigation is categorized by the agency as fitting GPS criteria
as opposed to CPS criteria, a distinction with plausibly no difference in some cases. See
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 16
23 Pa.C.S. §6332 (“The department shall establish a single Statewide toll-free telephone
number that all persons, whether mandated by law or not, may use to report cases of
suspected child abuse or children allegedly in need of general protective services.”); but
see Majority Opinion at 46-47. Nor do I agree the General Assembly “has drawn a clear
distinction between an individual who makes an anonymous report of child abuse as
opposed to one of child neglect.” Id. at 47. As explained supra, the CPSL’s definition of
child abuse includes types of neglect, and the decision to assign a report as GPS or CPS
belongs to the Department or agency staff performing the intake screening, not the lay
reporter. See supra n.7; see also 23 Pa.C.S. §§6334, 6362; 55 Pa. Code §3130.31. It
thus seems quite plausible that the CPS and GPS distinctions are not clear enough to
require the confidentiality of one reporter but not the other, and the contrary conclusion
appears antithetical to the CPSL’s express purpose of encouraging more complete
reporting of any and all child abuse. See 23 Pa.C.S. §6302. More importantly, however,
the majority’s sweeping judgment in this regard is a departure from the Department’s
stated practice, 9 and will have consequences for incident reporting across the
Commonwealth. And, even more problematic, the issue is not one squarely before us for
review. To the extent the parties do argue the issue, the majority accepts appellant’s
position, but does not address the reasonable counter-argument of DHS. DHS observes
CPSL subsection 6375(o) mandates “[i]nformation related to reports of a child in need of
general protective services shall be available to individuals and entities to the extent they
are authorized to receive information under [S]ection 6340[,]” and Section 6340(c)
protects the identity of the person making a report “of suspected child abuse.” Appellee’s
Brief at 38-39, citing 23 Pa.C.S. §§6340, 6375(o) (emphasis added). Although the
9See PA. DEP’T OF HUM. SERVS., PERMISSIVE REPORTERS: FREQUENTLY ASKED QUESTIONS,
https://www.dhs.pa.gov/KeepKidsSafe/Clearances/Documents/FAQ_Permissive%20Re
porter.pdf (last visited December 17, 2021).
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 17
reporter’s testimony may well have shed some light, it may simply be that the reporter
was anonymous, in which case DHS would not have known the reporter’s identity, let
alone called upon him or her to testify. In any event, the majority’s rule eradicating a
reporter’s confidentiality appears neither appropriate nor necessary in the context of this
case. 10
C.
One of the few objective tools available to agencies performing an initial
assessment or investigation is to obtain the family’s prior history of agency involvement,
which the regulations require. See 55 Pa. Code §3490.321(e)(1) (“[F]actors which shall
be assessed by the county agency include . . . the history of prior abuse and neglect.”).
“Simply put, as the frequency of known prior abuse/neglect increases, so does the risk of
harm to the child.” PA. CHILD WELFARE RES. CTR., UNIV. OF PITTSBURGH, A REFERENCE
MANUAL FOR THE PENNSYLVANIA MODEL OF RISK ASSESSMENT 22 (2015). 11 However, the
mere existence of a previous report is not dispositive of a high degree of risk; other
important factors include, inter alia, the quantity and quality of the previous incidents, the
abilities of the child and parent, and whether the severity of risk has increased over time.
10 The majority misconstrues my disagreement with its analysis of a reporter’s
confidentiality as a disagreement with its statutory analysis of CPSL Subsection 6340(c).
See Majority Op. at 48 n.23. Though I have highlighted here several textual and practical
reasons one might disagree with the substance of the majority’s review of this point, see
also supra n.7, I underscore my view that the majority’s decision to declare GPS reporters’
identities subject to disclosure conclusively addresses a discrete issue not encompassed
in our allocatur grant, despite the likelihood of significant negative impacts as well as the
majority’s recognition that potentially dispositive factors are “clearly not implicated in this
case.” Id. As described supra, the agency, not the trial court judge, categorizes a report,
and whether the trial court judge can or should override this agency function is not before
us; further, conditioning a reporter’s confidentiality on this after-the-fact determination
appears to me an absurd, if not harmful, conclusion.
11 http://www.pacwrc.pitt.edu/Curriculum/1300_PA%20Rsk%20Assssmnt_BsterSht/
Handouts/HO%203%20ARfrncMnlFrThPAMdlOfRskAssssmnt_CPSLRevision2015%20
(2).pdf
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 18
Id. at 22-23. In its updated guidance to county agencies regarding the initial assessment
of GPS reports, the Office of Children, Youth and Families instructs “[i]t is critical that
county agencies seek information regarding the child and family’s prior history of child
welfare involvement . . . . Prior referral history, previous indicated reports of abuse or
neglect, and prior services provided to the family offer important context to inform decision
making. . . . It often entails going beyond the [reported] maltreatment and the underlying
motivations of an individual making a report.” OCYF Bull. No. 3490-20-08 at 4.
For these reasons, I cannot agree with the majority’s determination appellant’s
prior experience with the agency from 2013 to 2015 — which includes the removal of one
child for over a year due to the structurally unsound and deplorable conditions in the
home, including lack of heat and hot water — is “totally irrelevant.” Majority Opinion at
43. The agency’s requirement to assess it makes it relevant; the particular
circumstances, including the passage of time and any subsequent history, afford it due
weight. I note the majority’s conclusion appellant’s DHS history was “stale” relies, in part,
on the assertion there was no recurrence of the prior problems, despite its recognition a
subsequent petition to compel cooperation was granted in 2016, and the trial judge, who
had presided over both the prior dependency petition and the 2016 petition to compel,
“may take into account these prior encounters.” Id. at 6 n.4, 43 n.19. In the 2016 petition,
DHS averred the family’s home lacked water service, which was confirmed by the utility
company. Motion to Compel Cooperation, 10/27/2016, ¶ 3(d). The majority further rests
its legal conclusion of staleness on indefinite or nonbinding jurisprudential statements
which, as a result of today’s decision, are now the law of the Commonwealth despite the
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 19
fact the issue was not squarely before the Court — and not preserved or developed
through the litigation in the lower tribunals. 12
D.
Lastly, as the Superior Court aptly explained in its analysis below, the standards
applicable to ex parte criminal warrants are ill-suited in cases such as this one where an
evidentiary hearing is held and the parties may present and cross-examine witnesses.
See Interest of Y.W.-B., 241 A.3d at 385-86. Where an ex parte warrant issues without
notice to the target of the search, the four corners of the affidavits supporting the warrant
must speak for themselves with sufficient particularity, reliability, and connection between
the search and the need, such that a surprise invasion would be justified. For law
enforcement seeking evidence to prove a suspect committed a crime, such a showing is
a fair requirement; criminal activity will usually leave a “trail of discernible facts” available
whereby probable cause may be established. LaFave, 5 Search & Seizure §10.3(a) (6th
ed.). This is not the case where a safety threat exists behind closed doors, especially if
the victim is not old enough to attend school, cannot communicate clearly, or is harmed
in a way that does not leave clearly visible injuries. See id. In such circumstances, the
“four-corners” requirements of personal knowledge or reasonably trustworthy information
from others to show a specific link to the home would require an agency to make a
probable cause showing of a thing they do not know exists in a place accessible only to
12Moreover, the majority’s conclusion in this regard is in tension with other aspects of
dependency law, involving a significantly stricter clear-and-convincing burden of proof, in
which prognostic evidence is routinely admitted to support an adjudication. See In re
R.W.J., 826 A.2d 10, 14 (Pa. Super. 2003); see also, e.g., N.J. Div. of Youth & Family
Servs. v. Wunnenburg, 408 A.2d 1345, 1348-49 (N.J. Super. Ct. App. Div. 1979) (holding
an adjudication of “unfitness” in relation to three older siblings twenty-two months prior to
the requested investigation regarding parents’ newborn child was a sufficient basis to
authorize home entry, “[p]arental unfitness is a personal characteristic which, ordinarily,
does not vanish overnight, or even within weeks or months.”).
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 20
those who would hide its existence. 13 In this sense, even the term “allegations” is
something of a misnomer, having different meanings whether in connection with the
original reporter, the GPS assessment report, or the petition to compel; further, the
petition is not “affied to” by an individual with personal knowledge, but verified by a legal
representative on behalf of the agency. Moreover, the agency cannot truthfully allege in
a verified petition that a home contains safety hazards when seeking an order to
investigate whether the home contains safety hazards. 14 And, as a result, we are left with
the quagmire we must now resolve.
Nevertheless, where the target of the search in such cases has an opportunity to
challenge the search — before it occurs, through the adversarial process, in a court of
law subject to appellate review, where a judge assesses credibility and has the authority
to direct the bounds and circumstances of the search — I see little reason for typical
warrant constraints to apply. I am therefore unpersuaded by the majority’s
pronouncement the evidence at a hearing on a petition to compel cooperation must be
cabined by the allegations in the petition. See Majority Opinion at 43-44. Unrelated risk
factors may be identified in the course of an investigation; preventing the consideration
of additional, relevant evidence beyond the allegations in the petition would appear only
13I note, as described supra, the reporter in such a case will likely be someone close to
the child whose confidentiality should be maintained for the child’s safety, whether the
report is coded as a CPS or GPS.
14 The majority observes, though DHS testified the GPS report contained allegations of
homelessness and inadequate basic care, “the Petitions to Compel d[id] not state that
[appellant] was homeless” or “describe any generalized [allegations of] ‘inadequate basic
care[.]’” Majority Opinion at 37. I counter that DHS could not aver appellant was
homeless or provided inadequate basic care because it was unable to obtain appellant’s
cooperation to rule in or out whether these concerns were true; if such facts were
available, an order to compel cooperation would be unnecessary. However, as discussed
further infra, I see no reason why DHS could not aver in its petition what categories of
concern it sought to assess.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 21
to further delay resolution of the matter to the detriment of all involved. Our Rules of
Juvenile Court Procedure allow for the liberal amendment of pleadings, oral motions, the
forgiveness of certain defects in the interest of expeditiously stabilizing the child’s
circumstances, the possibility of continuances in the interests of fairness, and assurance
of due process safeguards, such as adequate notice. See Pa.R.J.C.P. 1122, 1126, 1334,
1344. We need not depart from these principles where an evidentiary proceeding
commences from a petition to compel cooperation.
Thus, in my view, several of the judgments foundational to the majority’s analysis,
made here within the specific confines of establishing probable cause as opposed to
definitive proof, unduly restrict as a matter of law the discretion and scope of an agency’s
child protection investigation. These judgments also hamper rather than encourage the
more complete assessment of fact-bound risk factors better suited to the discretionary
functions of the agency, and the factfinding function of the trial court, than to the review
function of an appellate court. Nonetheless, I still agree with the majority’s result, for
reasons that follow.
III. Probable cause and administrative searches
As we have explained many times in our criminal law jurisprudence, the United
States Supreme Court dictates the requisite probable cause to warrant a search by law
enforcement in terms of reasonableness and fair probabilities based upon a totality of the
circumstances; that is: based upon a “balanced assessment of the relative weights of all
the various indicia of reliability (and unreliability)” of all the circumstances in a warrant
affidavit, the magistrate should make a commonsense, non-technical decision of whether
there is a fair probability of discovering evidence of criminal activity. Illinois v. Gates, 462
U.S. 213, 232, 234-38 (1983) (“[P]robable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts — not readily, or even usefully,
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 22
reduced to a neat set of legal rules.”); see also, e.g., Commonwealth v. Clark, 28 A.3d
1284, 1287-88 (Pa. 2011) (applying Gates, the reliability of hearsay information in an
anonymous tip need not depend on the veracity and basis of knowledge of the informant
if corroborated by other information).
However, the High Court has also explained this traditional “probable-cause
standard is peculiarly related to criminal investigations” and is “unhelpful in analyzing
the reasonableness of routine administrative functions, especially where the
[g]overnment seeks to prevent the development of hazardous conditions[.]” National
Treasury Employees v. Von Raab, 489 U.S. 656, 667–68 (1989) (internal quotation marks
and citations omitted; emphasis added), citing, inter alia, Camara v. Municipal Court of
San Francisco, 387 U.S. 523, 535 (1967). Though searches for administrative purposes,
like searches for evidence of crime, are encompassed by the Fourth Amendment,
“[p]robable cause in the criminal law sense is not required[,]” Marshall v. Barlow’s, Inc.,
436 U.S. 307, 320 (1978), and “may vary with the object and intrusiveness of the
search,” Michigan v. Tyler, 436 U.S. 499, 506 (1978) (emphasis added), citing Camara,
387 U.S. at 538. See also O’Connor v. Ortega, 480 U.S. 709, 723 (1987) (“[T]he
appropriate standard for administrative searches is not probable cause in its traditional
meaning.”); New Jersey v. T.L.O., 469 U.S. 325, 341 (1985) (“Where a careful balancing
of governmental and private interests suggests that the public interest is best served by
a Fourth Amendment standard of reasonableness that stops short of probable cause, we
have not hesitated to adopt such a standard.”), 15 citing, inter alia, Terry, 392 U.S. at 1,
15 The majority cites T.L.O. to support its pronouncement the Fourth Amendment “applies
equally” to criminal and noncriminal investigations. Majority Opinion at 33-34, quoting
T.L.O., 469 U.S. at 335. I do not disagree that the Fourth Amendment applies to both.
However, in my observation, T.L.O. does not support the proposition the provision applies
in equal measure in both situations; rather, it dispensed with traditional probable cause
requirements and held searches of school students required neither a warrant nor “strict
(continued…)
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 23
and Camara, 387 U.S. at 534–539; Griffin, 483 U.S. at 873 (“[I]n certain circumstances
government investigators conducting searches pursuant to a regulatory scheme need not
adhere to the usual warrant or probable-cause requirements[.]”).
Under the principles developed through the High Court’s jurisprudence, the
requisite demonstration of cause to justify an administrative search turns on a more
generalized notion of reasonableness than traditional probable cause, ranging from a
reasonable suspicion of some existing code violation, see Marshall, 436 U.S. at 320, to a
showing that reasonable legislative or administrative standards for conducting an
inspection would be satisfied, see Camara, 387 U.S. at 536-38, or where “special needs,
beyond the normal need for law enforcement” would make the traditional probable-cause
requirement impracticable, Griffin, 483 U.S. at 873. See also O’Connor, 480 U.S. at 723.
I would not, as the majority does, reject the relevance of Camara with respect to
child protection home inspections. See Majority Opinion at 24-25. Nor do I urge the
wholesale application of Camara in these types of cases. However, principles from
Camara remain foundational to administrative search jurisprudence among the federal
courts, and are omnipresent throughout the cases and scholarship regarding the
constitutionality of child protection investigations — including most of the cases cited by
the majority, underscoring its importance to the matter at hand. 16 In addition to confirming
adherence to the requirement that searches be based on probable cause” in favor of a
justification based “simply on the reasonableness” of a search which best serves the
public interest. T.L.O., 469 U.S. at 340-41; but see Majority Opinion at 23-24 n.14.
16 See, e.g., Tyler, 436 U.S. at 509; T.L.O., 469 U.S. at 337, 340; Roska, 328 F.3d at
1248; Walsh, supra n.3. The majority indicates these cases do not particularly rely on
Camara nor contradict its conclusions that no social worker exception to the Fourth
Amendment exists and that “traditional probable cause requirements” apply in the context
of a child protection home assessment, see Majority Opinion at 23-24 n.14; but I
respectfully disagree.
(continued…)
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 24
the Fourth Amendment applies even to routine home inspections by non-law enforcement
government officials, Camara articulated a basis to “vary the probable cause test from the
standard applied in criminal cases” in administrative searches, by degree of
Addressing the government’s entry and inspection of a private property for the purpose
of determining the cause of a fire, Tyler explicitly relied upon the Camara principle that
the probable cause showing required to authorize an administrative search warrant is
distinct from the “traditional showing of probable cause applicable to searches for
evidence of crime,” which would apply if arson was suspected, but otherwise “may vary
with object and intrusiveness of search” and satisfied by compliance with relevant
regulatory standards for conducting the search. See Tyler, 436 U.S. at 506 & n.5., 511-
12.
Contrary to the majority’s review of T.L.O., respectfully, that decision did rely on Camara’s
balancing principle, significantly weighing the prohibitive burden of obtaining a warrant in
favor of maintaining safety and order on school grounds, to curtail the privacy rights of
students. T.L.O., 469 U.S. at 337 (“[T]he standard of reasonableness governing any
specific class of searches requires ‘balancing the need to search against the invasion
which the search entails.’”), quoting Camara, 387 U.S. at 536–537; id. at 340-41; see also
supra n.15.
Though declining to excuse child protection social workers from warrant protocols for the
home entry and removal of a child not believed to be in imminent danger, the Tenth Circuit
in Roska recognized “the Fourth Amendment’s strictures might apply differently to social
workers” whose principal focus is the welfare of the child, “justif[ying] a more liberal view
of the amount of probable cause that would support an administrative search” and
assenting to “something approaching probable cause.” See Roska, 328 F.3d at 1249-50.
Additionally, I note other cases cited by the majority do not lend support for the proposition
that the same notion of criminal-law probable cause applies in an administrative child
protection proceeding. See Majority Opinion at 34, citing, e.g., In re Robert P., 132 Cal.
Rptr. 5,11-12 (Cal. Dist. Ct. App. 1976) (indicating the Fourteenth Amendment is
implicated in such proceedings, but explicitly declining to extend the Fourth Amendment’s
exclusionary principles). See also id. at 26, citing Von Raab, 489 U.S. at 668. Upholding
the routine warrantless drug testing of customs agents who sought promotions to
positions involving access to firearms and illicit substances, the Von Raab Court relied
not only upon the routineness of administrative employment decision-making, but upon
“the longstanding principle that neither a warrant nor probable cause, nor, indeed, any
measure of individualized suspicion, is an indispensable component of reasonableness
in every circumstance. . . . [O]ur cases establish that where a Fourth Amendment intrusion
serves special governmental needs, beyond the normal need for law enforcement, it is
necessary to balance the individual’s privacy expectations against the Government’s
interests” to determine the level of individualized suspicion in the particular context. Von
Raab, 489 U.S. at 665-66.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 25
reasonableness in light of the government’s particular need to search balanced against
the invasion the search entails. Camara, 387 U.S. at 537-39. For example, where a
criminal investigation requires a level of specificity that certain contraband will be found
in a particular location to justify the search of a dwelling, the health and safety inspection
program in Camara, the goal of which was to prevent the development of hazardous
conditions in private homes, required universal compliance with periodic inspections to
achieve acceptable results, as “[m]any such conditions—faulty wiring is an obvious
example—are not observable from outside the building and indeed may not be apparent
to the inexpert occupant himself.” Id. at 535-37.
On the “government need” side of the reasonableness equation, Camara
determined the need is met “if reasonable legislative or administrative standards for
conducting an area inspection are satisfied with respect to a particular dwelling”; however,
the Court also considered whether any less invasive method would achieve acceptable
results. Id. at 537-40. Camara identified factors including the routineness of the search,
its lack of personal nature or law enforcement aim, and the notice and time of day it would
be conducted (i.e., during normal business hours) to conclude the intrusion was limited,
and enforced the requirement of a warrant procedure as a necessary protection of the
occupant from unlimited arbitrary discretion, i.e., “rummaging,” by the official in the field.
Id. at 532, 537, 539; but see Majority Opinion at 28 (trial court’s order granting appellant’s
home inspection left search “entirely in DHS’s discretion” including, “if it so chose, a
general rummaging of all of the home’s rooms and the family’s belongings”).
Now echoed in harmony with the eminent criminal-law probable cause standard
pronounced in Gates, 462 U.S. at 232, 234-38, the importance of Camara’s proportional
balancing test is not overstated:
[In Camara] the Court has taken the view that the evidentiary requirement
of the Fourth Amendment is not a rigid standard, requiring precisely the
same quantum of evidence in all cases, but instead is a flexible standard,
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 26
permitting consideration of the public and individual interests as they are
reflected in the facts of a particular case. This is an extremely important
and meaningful concept, which has proved useful in defining the Fourth
Amendment limits upon certain other special enforcement procedures
unlike the usual arrest and search.
LaFave, 5 Search & Seizure §10.1(b) (quotations omitted). The majority’s view of the
limited types of administrative searches enabled by Camara — dragnet searches, and
searches involving special subpopulations with reduced expectations of privacy — is
certainly useful (to a degree) in identifying the relevant factors underpinning each line of
cases. Justification for dragnet searches intended to achieve universal compliance
without the need for individualized suspicion is predicated not only on the seriousness of
the government’s interest at stake, but also on the limitation of discretion by officials,
either through a warrant-type procedure or a statutory or regulatory regime setting the
terms of the search; for subpopulations whose expectation of privacy is already
diminished, a showing of at least some individualized suspicion of wrongdoing is required
in the absence of a warrant. See Majority Opinion at 26-27; Eve Brensike Primus,
Disentangling Administrative Searches, 111 Colum. L. Rev. 254, 263 (2011). But, as the
majority aptly observes, a child protection home inspection fits neither of these two
categories. Id. at 27-28. And as the foregoing explication describes, the principles of
criminal law are not wholly suitable either.
The High Court has articulated other factors to consider in assessing the
invasiveness of — and requirements for allowing — an administrative search. Where the
purpose of the search is law enforcement, the invasion is greater, and traditional warrant
and probable cause requirements apply. See Ferguson, 532 U.S. at 79-80; Tyler, 436
U.S. at 508. However, “[t]he discovery of evidence of crimes in the course of an otherwise
proper administrative inspection does not render that search illegal or the administrative
scheme suspect.” New York v. Burger, 482 U.S. 691, 716 (1987). A supervisory
relationship “that is not, or at least not entirely, adversarial” between the government-
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 27
searcher and the object of the search, e.g., school and student, employer and employee,
probation officer and probationer, may demonstrate a special need of the agency “to act
based upon a lesser degree of certainty than the Fourth Amendment would otherwise
require in order to intervene[.]” Griffin, at 879; see also O’Connor, 480 U.S. 709, 725-26;
T.L.O., 469 U.S. at 339-40. In all cases, determining the reasonableness of any search
involves a determination of whether the search was justified at its inception and
reasonably related in scope to the circumstances that warranted the interference in the
first place. T.L.O. 469 U.S. at 341, citing Terry, 392 U.S. at 20.
Though the United States Supreme Court has not directly addressed the
constitutionality of administrative searches and seizures performed under state child
protection statutes, federal district and circuit courts reaching the issue provide consistent
guidance to the extent they uniformly, although generally, establish the Fourth
Amendment’s protections do unequivocally apply to child protection investigations and
child removals; the cases are significantly less consistent, however, with regard to the
degree of protection to apply. See supra at 2 n.1. Given the gravity of interests at stake,
the bounds of these cases are important to consider: they arise in the posture of summary
judgment in Section 1983 civil rights actions and on the distinctive fact of a warrantless
search by an agency, which is presumptively unreasonable. See, e.g., Darryl H., 801
F.2d 893 at 901; Tenenbaum, 193 F.3d 581 at 605; Franz, 997 F.2d 784 at 791; Good,
891 F.2d 1087 at 1095-96; Roska, 328 F.3d 1230 at 1240-42; Walsh, 240 F.Supp.2d 731at 758-60. In this limited context, the courts’ resolution turns on whether a basis exists to
reasonably support an exigency or other exception to the warrant requirement, or
otherwise afford the investigator with a qualified immunity defense, see, e.g., Tenenbaum,
193 F.3d at 605, but does not reach the merits of whether a warrant should issue on any
set of facts. As a result, such cases define characteristics of objectively unreasonable
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 28
searches only, and provide little guidance for the magistrate or investigating caseworker
to assess what quality and quantity of information available to describe potentially harmful
circumstances will establish sufficient cause to justify an invasion of privacy when
evidence of danger is suspected to exist, but has not been clearly established.
For these reasons, I view the majority’s reliance on Good and Walsh, which
considered only whether exigent circumstances excused a warrantless search, to support
its conclusion principles of probable cause in child protection investigations must always
adhere to those in criminal investigations, to be somewhat misplaced. The majority
quotes Good as follows: “‘Fourth Amendment caselaw has been developed in a myriad
of situations involving very serious threats to individuals and society, and we find no
suggestion there that the governing principles should vary depending on the court’s
assessment of the gravity of the societal risk involved.’” Majority Opinion at 20, quoting
Good, 891 F.2d at 1094 (emphasis added). However, this portion of the opinion refers
not to any judicial approval of a warrant or similar request to compel an inspection, but to
the district court’s erroneous assessment that certain immunity provisions of the CPSL
absolved the investigating social workers who performed a strip search of a child, without
a warrant or court order, and in the absence of any evidence of imminent danger of
serious bodily injury that might excuse their lack of process. 17 See Good, 891 F.2d at
1093-96.
17 Similarly, I view the majority’s use of Mincey v. Arizona, 437 U.S. 385, 393 (1978), see
Majority Opinion at 21, as even farther afield, as the case dealt with a warrantless multi-
day search by law enforcement of a murder suspect’s home, during which time the
suspect was incapacitated and all of the other household members were safely relocated.
437 U.S. at 389, 393. The High Court determined the state court’s decision deeming the
murder crime scene per se exigent was unconstitutional because it excused the police
from obtaining a warrant where there was no imminent danger to “life or limb.” Id. at 393-
95. Furthermore, while I do not endorse a view that a child protection investigation or
assessment should be per se exigent, I do view the government’s interest in halting and
preventing harm to children, who are in no position themselves to escape harm inflicted
(continued…)
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 29
In contrast, the present case involves no such lack of process. Beyond the
protection afforded by any warrant issued and exercised without advance notice to the
object of the search, DHS filed a petition to compel appellant’s cooperation with its
investigation, and appellant received an evidentiary, adversarial hearing to contest the
petition before a court of common pleas where the judge found probable cause existed
to order a compelled home safety assessment. On the merits, then, we are left with the
question of whether the Fourth Amendment requires compelled child protection
investigations be supported by the traditional standard of probable cause applicable to
criminal investigations as the majority advances. Majority Opinion at 20-21, 23-24 n.14,
33-34. For the foregoing reasons, I suggest it does not, and I would not foreclose the
possibility of future development of more clearly-tailored tenets. Presently, however, as
described supra, there appears to be no real dispute over the Superior Court’s expression
of probable cause in terms of “fair probabilities” so long as the “fair probability” measured
relates to a need for protective services as they are defined by the CPSL.
Accordingly, I now review whether, in light of the totality of the circumstances of
DHS’s need to search and the concomitant invasion of appellant’s privacy, the record
contains a substantial basis of fair probability that the home assessment ordered by the
trial court would uncover evidence showing one or both of appellant’s children were in
need of protective services under the CPSL.
IV. Application
Applying the principles we articulated in Clark, supra, to this context, proper
dispatch of the totality of the circumstances approach should not “‘judg[e] bits and pieces
of information in isolation against [ ] artificial standards[,]’” but rather should consider the
by those intended to protect them, as significantly different, and in certain situations
possibly more urgent, than solving a completed crime that can no longer be prevented.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 30
information appropriately available to the trial court “‘in its entirety, giving significance to
each relevant piece of information and balancing the relative weights of all the various
indicia of reliability (and unreliability)[.]’” 28 A.3d at 1289, quoting Massachusetts v.
Upton, 466 U.S. 727, 732 (1984) (applying Gates, 462 U.S. at 234).
In its opinion, the trial court described the two substantiated GPS reports
underlying DHS’s initial involvement in September 2013, and Y.W.-B.’s removal from
appellant’s care and placement in foster care later in October of 2013, as set forth by
DHS in the Petition: the first report stated Y.W.-B., then aged fifteen months, was often
heard yelling and screaming, appellant hit him on the arm, and although his basic needs
were met, the home was dirty and disordered; the second report stated the family’s home
was structurally unsound, flea-infested, lacked internal walls and heat and hot water, and
was in deplorable condition. Trial Court Opinion, 9/9/2019, at 1-2. Y.W.-B. remained in
foster care until July of 2015, and under protective supervision until the trial court
discharged DHS’s supervision and dependency petition in November 2015. Id. The court
also set forth the additional allegations in the current Petition, i.e.: the family had been
sleeping outside the Philadelphia Housing Authority; appellant was outside the Authority
from noon until 8 P.M. three weeks later and possibly did not feed the child who was with
her during that time; appellant was there to protest, and stated she was not homeless and
that her previous residence had burned down; DHS confirmed appellant’s address
through a public welfare records search; DHS located the home and the children’s father
was present but would not allow the caseworker inside the residence; DHS observed
appellant arrive with the children and usher them into the home; appellant refused to allow
DHS to assess the home or children; DHS did not enter the home but observed from
outside “that one of the home’s windows was boarded up”; and, DHS returned
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 31
accompanied by police, but appellant still refused entry. Id. at 6-7, quoting Petition at ¶¶
3(j)-(m).
Regarding the hearing on the Petition, the court described appellant’s testimony,
in which she attempted to refuse to answer his questions about her income and ability to
feed the children and obtain their medical care, and the court stated its finding the DHS
caseworker’s testimony was credible. Id. at 7-8. The court noted, because the Petition
included an allegation the family slept outside the Housing Authority, it was reasonable
to ascertain if their housing was stable, and the Petition thereby established probable
cause. Id. at 8. The court entered an order directing appellant to allow DHS into the
home to assess and “verify if [appellant’s] home is safe and appropriate,” and further set
a date and time for the assessment, and provisions for appellant to have a witness
present. Trial Court Order, 6/18/2019.
I agree with the majority that the trial court’s analysis raises more questions than
provides answers about the basis of the court’s concern. We can guess about the
significance of the prior dependency matter, but without definitive resolution; sleeping
outside might mean hovering under a tree at night or napping on a bench in broad daylight
— or a myriad of other circumstances not necessarily indicative of safety level; and a
single boarded up window might be cause for concern depending on the location and size
of the space covered by the board, and what lies behind it. The Petition itself is not much
more illuminating, 18 though it provides the additional detail that N.W.-B. was born in
18 The second-to-last page of the Petition contains two paragraphs which provide the
movant with the option of checking a box to include them as statements in the verified
petition. The box relating to the first paragraph, which requests the court to order
appellant to “cooperate with the investigation,” is checked. Notably, the box relating to
the second paragraph, which states, “the allegations set forth above constitute probable
cause to believe [the children are] the victim(s) of child abuse and/or neglect, and
probable cause to believe that evidence relating to such abuse will be found in the
home[,]” is not checked. Petition at 5 (unnumbered). In other words, DHS did not aver
in its petition a belief or allegation that probable cause existed.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 32
January of 2015 while Y.W.-B was still in foster care, and she remained in appellant’s
care during that time. Petition at ¶3(g). The hearing transcript demonstrates the trial
judge remembered the family from prior proceedings, and that the family’s home address
was the same. N.T. 6/11/2016 at 12. However, as explained previously, the DHS
caseworker’s testimony, deemed credible by the judge, indicated the Petition may have
contained mistakes. Indeed, the caseworker directly refuted the Petition allegation she
saw the children enter the home — an allegation the trial court nevertheless relied on in
its opinion. And while DHS urges us to consider the trial court’s determination appellant
was “evasive,” the court made no such finding — the court observed appellant attempted
to refuse to answer its questions, but in the end, she did answer them. See id. at 12-14.
Turning to appellant’s prior dependency matters, I note the trial court record for the
underlying Petition includes the entire dependency court record, presided over since its
midpoint by the same trial judge as this Petition. The twenty-five-month-long matter,
including Y.W.-B.’s placement in foster care for twenty months due to hazardous housing
conditions, is relevant; but all other circumstances incident to the case are relevant, too.
Here, the court’s record reveals: each case plan and permanency review order noted the
parents’ full cooperation with the agency and court’s orders; the condition of the house,
which parents own, was the only problem; parents consistently worked on repairs, they
took classes in home repair, and both enrolled in college; and, except for a brief period
before the first permanency review, parents were awarded liberal, day-long visits with
Y.W.-B. so long as they didn’t go to the house. See Juvenile Court Docket, entries dated
10/21/2013 – 11/24/2015; DHS Family Service Plan Review, 9/18/2014. Finally, although
a subsequent Motion to Compel Cooperation was filed in 2016 averring the water
department confirmed the home’s service had been shut off, service had been restored
and parents applied for payment assistance prior to the hearing. See Motion to Compel
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 33
Cooperation, 10/27/2016, at ¶3(d); Trial Court Order, 11/23/2016. Thus, the prior
dependency court record demonstrates at least as much capacity to care for and protect
the children as it does concern for risk of harm relating to the conditions existing inside
the home at the onset of DHS’s involvement in 2013.
Given the aforementioned missing details and other inconsistencies in the record,
I cannot conclude it established a fair probability that appellant’s children need protective
services sufficient to warrant the government’s intrusion into appellant’s home. Though
the trial court, in good practice, included protective parameters in its order to reduce the
intrusion of the home assessment, the search nevertheless remains an invasion upon
appellant’s greatest expectation of privacy, and this record does not demonstrate a
substantial basis for DHS’s need to invade.
If this result begs the question what would have sufficed, I suggest that, in this
case, it would have required only a modicum more, particularly in light of the fact appellant
admitted after the home assessment that the home’s front room had been damaged by a
fire. N.T. 6/18/2019 at 18-19. A photo of the home’s exterior, a sworn statement of
observed or believed fire damage, certainly, more detail from the anonymous reports
would have been useful, as well as the GPS report document if possible. Given the
Petition’s evidentiary import, accuracy in the pleading is a must; but even an oral motion
to amend errors may have rehabilitated its weakened reliability. In addition, reference to
agency regulations or policies addressing the scope of the search and its confidentiality
would be demonstrative of necessary limitations on the discretion of the caseworker in
the field. 19 But more importantly, some explanation of the agency’s risk assessment was
19 The majority declines to address the particularity of the search order directly, but, as I
noted above, it does criticize the order’s lack of limitation as authorizing “general
rummaging of all of the home’s rooms and the family’s belongings.” Majority Opinion at
28; see also id. at 13 n.11; supra at 26. This concern may be somewhat overstated in
this case: appellant did not complain of any rummaging from her prior experiences with
(continued…)
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 34
crucial, notwithstanding the trial judge’s past experience with these individuals, in order
to establish in the record some basis for why these pieces of information raised the
agency’s concern and how the search satisfied administrative standards. And, while a
home assessment may be the most powerful tool for obtaining reliable information, there
are other tools available to further an investigation, for example: school visits for children
who are old enough, discreet questions to neighbors when appropriate, or as DHS did in
2016, a confirmation of utility services (or lack thereof) to the home. Where other efforts
are unavailable, or attempted and thwarted, an explanation of those efforts is a
considerable factor. Although, as Judge Beck observed, “the frustration agency officials
experience in carrying out their tasks must be immense,” it is nonetheless “critically
important that we [e]nsure agencies act within the bounds of the Constitution.” Petition
to Compel, 875 A.2d at 380 (Beck, J., concurring). It is, after all, a government
investigation.
The trial court’s function is to resolve conflicts in evidence, and appellate courts
generally should afford great deference in dependency matters to the judge who has
observed the parties over multiple hearings. See Interest of S.K.L.R., 256 A.3d 1108,
DHS, and acknowledged the caseworker performing the assessment in this instance “had
a good attitude,” N.T. 6/18/2019 at 15; the trial court generally described the walk-through
safety inspection several times, see N.T. 6/11/2019 at 17-18, 24-25, 32; and the
caseworker testified DHS has a standard walk-through procedure for assessments, see
N.T. 6/18/2019, at 10-12, that would clearly be violated by “general rummaging.”
Nevertheless, the prevention of such unreasonably intrusive searches is a valid
constitutional concern, and a petition to compel a home assessment may be an
individual’s first contact with the child protection and dependent court systems. All
practical efforts should be made to assure parties of the expectations and limitations of
the search, such as providing reasonably detailed orders, or directing access to relevant
agency policies and procedural safeguards. See 55 Pa. Code §3130.23 (“County agency
rules and policies describing the services offered by the county agency, service policies
and procedures, eligibility for services, financial liability of clients and the rights of clients
to receive or refuse services shall be available to the public for review or study in every
county agency office on regular workdays during regular office hours.”).
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 35
1127 (Pa. 2021). As the majority relates, these observations are certainly relevant;
however, to obtain the benefit of them upon a challenge, they must be invoked in some
manner. See Majority Opinion at 43 n.19. In this instance, in my view, the trial court’s
resolution only further obfuscated any indicia of reliability attending the information
provided by DHS. To justify a deprivation of constitutional magnitude where the court
does not otherwise have dependency jurisdiction over the child, the court relying on its
prior experience, like the agency, must articulate in the record the basis for its belief; “it
cannot simply assert the belief without explanation.” Petition to Compel, 875 A.2d at 380.
Justice Todd joins this concurring and dissenting opinion.
[J-39A-2021 and J-39B-2021] [MO: Donohue, J.] - 36