Some commenters on the earlier post raised this issue, so I thought I’d speak briefly about it.
1. Fourth Amendment and the substantive parental rights doctrine developed under the Due Process Clause: From what I’ve seen of the circuit court cases, both constitutional provisions have been read as requiring at least reasonable suspicion of imminent danger to the child (or of past abuse to the child, which will usually also lead to individualized reasonable suspicion of imminent danger) before a child can be seized by child protective services, even briefly. Some courts require not just reasonable suspicion, but the higher standard of probable cause. See Doe v. O’Brien, 329 F.3d 1286 (11th Cir. 2003) (probable cause); Hatch v. Department for Children, Youth and Their Families, 274 F.3d 12 (1st Cir. 2001) (reasonable suspicion); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) (probable cause, especially when read together with Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000)); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (generally suggesting probable cause, though leaving open a “special needs” exception for unusual cases). The rule may be different when the child is detained briefly at a government-run school as opposed to in a private home or a private school, but that’s not at issue here. As I read the Texas Court of Appeals decision, it looks like the state did not have probable cause or even reasonable suspicion of abuse as to many of the children involved in the raid, so the Fourth Amendment and the parents’ parental rights have almost certainly been violated.
Of course, before any damages award is given, there’d have to be a finding that the law is well-established (or else the defendants would have qualified immunity. My quick search didn’t find any Fifth Circuit or Texas state precedent that’s entirely on point. But my sense is that the need for at least individualized reasonable suspicion is likely clearly enough established (even if only in other circuits), especially given the broader background Fourth Amendment principles requiring probable cause for seizures in private homes.
2. Procedural rights under the Due Process Clause: I know much less about this than I do about the Fourth Amendment and substantive parental rights, but I strongly suspect that the Due Process Clause has been read as requiring a hearing before one’s children are removed, even temporarily, unless there are some exigent circumstances preventing that. Given the Texas Court of Appeals’ description of the facts, it sounds like exigent circumstances were indeed absent here, at least as to many of the children.
3. State law rights: I can’t speak to whether Texas law provides its own damages remedy for the violations of the law found by the Texas Court of Appeals.