WYMAN v. JAMES

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Argument of Brenda Soloff

Chief Justice Warren E. Burger: Arguments of this time in No. 69, Wyman against James.

Ms. Soloff you may proceed whenever you are ready.

Ms Brenda Soloff: Mr. Chief Justice and may it please the Court.

At issue in this case, is the ability of the agency which is charged with administering a local Aid to Families with Dependent Children program to verify information which an applicant or a recipient is concededly obliged to furnish for eligibility purposes and to verify it as meaningfully as possible by a visit to the home by an agency caseworker.

Or put another way, the question is whether the adult AFDC client has an absolute right to refuse access to her home and still receive assistance, no matter what her conceded obligations maybe, and even if a refusal is entirely arbitrary.

Essentially, we submit that since AFDC assistance is premised on the care of children in homes which would otherwise be unable to provide for them, that the request for access to the home is a reasonable one.

In addition, since that request is denied the result is neither entry nor a contempt proceeding nor automatic termination of benefits, but a hearing.

The home visit apparatus does not infringe any Fourth Amendment right.

No warrant procedures required to validate the home visit, nor could any such procedure more fully protect the AFDC client against the arbitrary exercise of the party than the one that we have now.

Justice Potter Stewart: Does advance notice of the caseworker's visit normally given or is it not?

Ms Brenda Soloff: It was given in this case, Mr. Justice.

Justice Potter Stewart: I know it was, but I saw many affidavits in the appendix?

Ms Brenda Soloff: There is a policy in New York City that it be given.

The affidavits do indicate that it was not given in those cases.

I would think that, that could be an issue which could be resolved at a hearing which is held.

Justice Potter Stewart: But in any event in this case it's conceded that there was an advance notice?

Ms Brenda Soloff: In this case, there definitely was advance notice for approximately a week.

The adult appellee in this case Barbara James first applied for assistance in April 1967, pursuant to the state regulation, requiring that a home visit be made to initial applicants for assistance, such a visit was made, the apartment was seen and various aspects of eligibility were discussed.

The worker was not then or afterward persuaded the appellee's eligibility, but recommended that the case be open because of the imminent birth of her child.

Thereafter, there were regular, periodical contacts with appellee, also as required by regulation.

These contacts took the form of additional home visits to attempt to verify eligibility and to attempt to deal with appellee's many demands, the greater number of which were seem to be invalid.

During these visits, no worker went behind close doors or poked or probed into any closed area and at each visit the child was seen.

Ultimately, she notified a caseworker who had sought to make an appointment by letter a week in advance that under no circumstances and at no time would the worker be admitted to the home.

On May 27, 1969 before any termination of benefits, a hearing was held by the department at which appellee and counsel were present and at which counsel represented that although his client would talk anywhere, she would not talk at home because that would violate her right of privacy.

The referee found that refusal to comply with the policy of contact by home visit justified the case -- closing the case, pointing out and I quote from his opinion, “The home visit which Mrs. James refuses to permit is for the purpose of determining if there are any changes in her situation that might effect her eligibility to continue to receive public assistance or that might affect the amount of such assistance and to see if there are any social services which the department of social services can provide to the family.”

He, therefore, affirmed the decision to close the case.

Appellee did not proceed as she could have to a state fair hearing.

Instead a complaint was filed in the District Court for the Southern District of New York, seeking declaratory and injunctive relief against the termination of benefits for refusal to consent to a home visit without a warrant.

A statutory three-judged court was convened and its majority opinion, the court held that a home visit without a warrant is an invasion of the constitutionally protected right of privacy.

That alternative methods are available to verify eligibility and that should a home visit be deemed required to consider a certain aspect of eligibility and the applicant or recipient refuses to allow the visit, a suitably restricted search warrant may issue to force the client to disclose the terms of his eligibility.

The majority rejected any idea that the home visit could legitimately ascertain the wellbeing of the child, although I think somewhat inconsistently it also provided in its alternative possibilities for verification of the wellbeing of the child.

The first point to be made, I think, is that the home visit as presently structured is a reasonable and necessary investigative tool in AFDC cases.

There can be no doubt that it serves valid purposes, it provides information on a need for and the extent of assistance, and it provides information on the extent to which the assistance is being used for and is working for the only purpose of the program, that is the care children in their homes and in this connection it also serves to identify immediate areas of service.

It is conceded --

Justice William J. Brennan: Mrs. Soloff, there is a no relevant HEW regulations on this subject, is it?

Ms Brenda Soloff: There is an HEW -- if you mean Mr. Justice, is there a regulation specifically requiring home visits, there is only for a quality control sample of cases, but there is such a requirement for an investigation of a selected sample and I think, it's important to note in this context that the appellees apparently don't challenge the fact that you can make home visits to this selected sample.

Justice William J. Brennan: What's the sample?

Ms Brenda Soloff: It's not that I know of specifically designated in the regulation, but each household is a potential member of that sample and it seems to me that constitutionality doesn't rest on a number of homes that you include in the sample.

If the sample proves inadequate, you must increase it.

And in this case, what's essentially happened is that it's increased to a 100%, but there is that core of sample cases and --

Justice William J. Brennan: And the idea that under that regulation the purposes of the visits would be precisely the purpose of the (Inaudible)?

Ms Brenda Soloff: Yes, Mr. Justice.

Justice William J. Brennan: Both at sample, tell me something more about that, will you?

How do you select the houses?

Ms Brenda Soloff: I am not completely familiar with the mechanics of how these -- a sample is selected, but I do know that each state is required to furnish a sample that will be adequate at least for HEW purposes, will be deemed to be adequate to determine if in fact eligibility requirements are being met.

Justice William J. Brennan: Well, is there any significance which HEW to the fact that apparently HEW requires only visits?

It was sample of places and not to all those sharing in the program?

Ms Brenda Soloff: I think there is no constitutional significance to it Mr. Justice, as far as whether or not there is a significance in the fact that they may deemed this adequate.

This is a policy question, they may or may not.

The states are free unless there is a specific proscription to provide for such testing of eligibility as they deem appropriate in their own programs and New York, of course, has just about the most extensive, I think, it does have most extensive AFDC program in the country and it presents a great number of problems which the state is just trying to cope within this fashion and nothing in HEW regulations proscribes this.

Justice William J. Brennan: Unless you delete a proscription beyond the sample, in the fact that that's all HEW refer?

Ms Brenda Soloff: There -- I think you cannot strictly say that the regulation which says that you must do so much says that you can do no more.

Justice William J. Brennan: What do the state authorities do in compliance with the HEW requirement of sample of visits?

Ms Brenda Soloff: They provide statistics to HEW, based on selected sample of cases.

Justice William J. Brennan: Well, I mean what do New York societies do in compliance to that regulation?

Ms Brenda Soloff: They prepare reports for HEW.

Justice William J. Brennan: Well, I know but they must be reports of, what, a sample of visits or what?

Ms Brenda Soloff: Well, no.

A sample, a full field investigation of eligibility including a home visit.

This is seen -- I am more familiar with what's happening now in the simplified declaration experiment which is presently going around -- being tried out around the country.

In that case each state was required to set up districts or experimental districts within the state, not the entire state.

To try to see if eligibility could be determined on a simple affidavit process.

To check that, a home visit was required as part of a full field investigation again in a selected sample of cases and the results that have come in from that so far are inconclusive.

Justice William J. Brennan: Now if the investigation including the home visits deemed only at a surveillance to determine eligibility or continued eligibility?

Ms Brenda Soloff: It's eligibility and continued eligibility in a full sense.

That is, that the person is in need and that would respect to continued eligibility that the assistance which is being given works for the benefit of the child and if it doesn't work then that is an aspect of eligibility for the program.

Justice Byron R. White: Now is that a condition for eligibility that it works?

Ms Brenda Soloff: Yes, Mr. Justice.

Justice Byron R. White: How do you when -- would you just indicate briefly, specifically how a home visit contributes to determining eligibility based on those few factors which determine eligibility, not some peripheral matters that might be able to -- that might interest the social worker?

Ms Brenda Soloff: The home visit can verify of course first the residence.

It can verify the number of people in the family.

It can assess management, both past management for eligibility purposes.

Justice Byron R. White: Now what's that got to do with eligibility?

Ms Brenda Soloff: It has to do with the possibility of resources and this is in terms on initial eligibility I am speaking now.

It has to do with the possibility of the existence of undisclosed resources.

Justice Byron R. White: How does the home visit contribute to that?

Ms Brenda Soloff: By seeing what is in the home, the worker maybe able to have an idea of whether or not the conditions which the claimant -- which the client has stated exists, do in fact exist.

And in terms of the functioning of the household in relation to the child a home visit can tell more than an office visit.

Justice Byron R. White: Well, now that's what I don't understand a home visit, do you want to see if the aid is being used for the child, is that it?

Ms Brenda Soloff: That's right Mr. Justice.

Justice Byron R. White: How do you tell that?

Ms Brenda Soloff: You can tell by the functioning, the relationship of the child to the home whether there are adequate facilities for the child in the home, whether the child is receiving the kind of care which does now or may create a dangerous situation which must --

Justice Byron R. White: Let's assume that the child isn't receiving adequate care in your judgment, does that terminate eligibility?

Ms Brenda Soloff: Under the --

Justice Byron R. White: Or does it just provides some ground for taking some action under some other law?

Ms Brenda Soloff: Well, but the ground -- if the ground -- the ultimate result is a neglect proceeding which the statute specifically provides, the Federal Social Security Act provides must be done if there is a danger to the child.

That would in effect terminate eligibility.

It maybe that services will have to be, mandatory services will have to be provided for the child to keep the child in the home.

Justice William J. Brennan: Well, let's see, does that mean the example of an investigation is closed.

The mother with her single child is an alcoholic, and all of the money she gets goes into the purchase of liquor and she doesn't -- and none of it goes buy food for the child or something like that.

That then means, eligibility maybe terminated, so the child gets nothing?

Ms Brenda Soloff: No, Your Honor, Mr. Justice, it means that steps must be taken to protect the child even if it means either introducing another person into the home to care for the child or removing the child from the home.

But these are, this is a purpose of the program.

It's a statutory congressional policy that not only the technical criteria of eligibility, but the home conditions of the child are relevant to maintaining the child in that program.

If the child cannot be maintained in their home then he must either be removes or steps taken to improve the home, but that's as important an aspect of the program as the other.

We are aiming at the child, and seeing the home in this respect is as important as the technical eligibility factors.

In my reply brief in this Court, I cited two instances which I think illustrate -- one illustrates one of these factors and the other illustrates the other.

The first one referred to was an example from the selected sample in the declaration system and it was a woman who had applied for assistance and been accepted for assistance on the ground that her husband had deserted her and assistance was given.

However, a spot check was made and the worker discovered the husband in the home.

It was quite as simple as that.

The result of that was a support hearing, a payment of rent arrears, a reference to a marriage counselor, but an ineligible family was not put on the rolls and that was purely technical eligibility factor.

The other case was far more drastic in what happened and far less precise in what the worker could determine.

This was a recertification visit under New York Law and in non-experimental area, under the present system, and the worker walked into the home and knew that the family consisted of the mother and three children.

And she walked into the home and she saw the mother and the oldest child and not the other two children and the home atmosphere quite simply disturbed her.

She was told that one child was with his maternal grandparents and that the other child was with some neighbor, but she wasn't sure which and that's all she did.

But she was disturbed and she went back to her center and she called the maternal grandparents and they had not heard, they did not have the infant and they were not aware of where the infant was.

The maternal grandparents --

Unknown Speaker: (Inaudible)

Ms Brenda Soloff: The maternal grandparents who apparently were more aware of the disturbed nature of the mother than the other, than even the center, went immediately to the home.

And it was discovered that the younger two children in fact were dead and that the oldest child was brought into the center.

But there was no precise element in that home for which you could a warrant or on which you could base any kind of determination and yet it was the responsibility of the agency which must provide for the care children in the home only so long as they can be cared for in the home, to find out what happened to those children and that was the way they did it.

Justice John M. Harlan: Could I ask you a question Ms. Brenda?

Why did the (Inaudible)?

Ms Brenda Soloff: The administrative steps are established by regulation Mr. Justice that a visit must be made.

Well, a contact is supposed to be made in AFDC cases every three months.

This had been -- it had been the policy to make the visit every three months and this would be on a regular schedule devised by the center itself which was sending out the case workers.

The case loads have made every three months impossible in New York city and it has been reduced to every six months at this point.

Justice John M. Harlan: From the caseworker, in the interval, between the scheduled visits, the caseworker gets an idea that she/he would like to go and just take a look at the house more than the regulations prescribed, can they do that?

Ms Brenda Soloff: They have no authority to make a recertification visit for that purpose.

I think that eligibility itself, technical eligibility is only in those set slot periods.

Now there maybe instances, there are in Mrs. James case where home visits were made other than recertification times, but in those instances it was basically two verify information at the request of the client.

Certainly, at the request of the client it can be made and I think that the agency would have discretion where factors warranted to make a visit outside of the certification period.

Chief Justice Warren E. Burger: What -- has anyone suggested what allegations you would make in an application for a warrant?

Ms Brenda Soloff: The District Court did make some suggestions.

Chief Justice Warren E. Burger: What do you have to say about their suggestions?

Ms Brenda Soloff: I think that the suggestions for the warrant the District Court made which are no other alternative available, limited to a specific element which you may not be able to find out about until you make the home visit.

This is particularly true with preschool children to whom there is otherwise no access until something happens to them.

It's simply unworkable and it would require on an individualized case basis who would have to setup the kind of body of case law that we have now for criminal Fourth Amendment cases.

I think one of the crucial distinction is between the Camara decision of this Court and the reliance placed on it by the District Court is just this distinction, because what the District Court does in mandating a warrant procedure is to restructure the home visit, to make it no longer reasonable, to make it on a periodic basis and yet it clearly is and it is related so closely to valid purposes that it clearly is reasonable.

Justice Thurgood Marshall: What are the restrictions on the visit?

They go in any room?

Are there any regulations which tell the worker what she can and cannot do when you make a visit?

Ms Brenda Soloff: Yes, there are Mr. Justice.

Justice Thurgood Marshall: Are they in the record?

Ms Brenda Soloff: The citations are set forth in our brief and I believe they are not in the appendix, but they are I believe in the record.

Justice Thurgood Marshall: In the record, but not in the appendix?

Ms Brenda Soloff: Yes.

Chief Justice Warren E. Burger: Could you elaborate on that a little bit and summarize what are those -- what the regulations tell us?

Ms Brenda Soloff: The regulations preclude a visit without consent that is it may not be a forced admission.

There may not be a looking into closets or into any closed area.

It may not be made outside of normal working hours.

In fact, Mrs. James in this case proscribed areas such as the bedroom, when she said, you may not -- the door was closed.

She said, you may not enter; the worker did not enter.

So that it really is carefully limited by Federal and State regulation and if there is any abuse of it, of course, it can be resolved at a hearing before benefits are ever terminated.

Justice Thurgood Marshall: But does the recipient know what those regulations are and that they have right to tell them, you can't go in those closed rooms?

Ms Brenda Soloff: As far as I know Mr. Justice, they do.

Mrs. James certainly did.

She was not at least bit intimidated.

Justice Thurgood Marshall: Mrs. James had lawyer, didn't she?

Ms Brenda Soloff: Not during the home visit.

She had a lawyer after, at the time of the hearing.

How much prior to that she had a lawyer, I don't know, but this was her attitude from the beginning and it was perfectly proper.

Justice Thurgood Marshall: You present to this Court the fact that every recipient knows those regulations?

You wouldn't say that, would you?

Ms Brenda Soloff: Mr. Justice, I don't know to what extent the average recipient knows the regulations.

He was informed at the time when his application is taken of investigative procedures.

Justice Thurgood Marshall: Is he told that it's up to him or her as to whether they let them in or not?

Ms Brenda Soloff: No, Mr. Justice.

Justice Thurgood Marshall: Is he told that you can restrict movement when you get in the apartment?

Ms Brenda Soloff: I would not think that he is told that, but I would also not --

Justice Thurgood Marshall: It is pretty broad warrant, isn't it?

Ms Brenda Soloff: I think, no.

I think there is no charge --

Justice Thurgood Marshall: Well, what is the social work he is looking for?

Ms Brenda Soloff: He is looking for evidence of eligibility and of the wellbeing of the children.

Justice Thurgood Marshall: Which means anything?

Ms Brenda Soloff: It means whatever he can establish from what he can see in the apartment and what he can observe of the workings of the apartment, the relationship of the people.

Justice Thurgood Marshall: But, of course, if you have this warrant then its vagueness search in what you search for?

Ms Brenda Soloff: Yes.

Justice Thurgood Marshall: This is broader than a search warrant, isn't it?

Ms Brenda Soloff: The average warrant would authorize greater intrusion into more areas than the worker.

There is no charge in any of these, either by this appellee or by any of the other people who submitted affidavits that that is their problem in this case.

None of them has ever charged that kind of abuse by a caseworker.

I would like briefly to say that as I have said that the warrant procedure really would restructure the home visit and that it is reasonable as it stands that the reason if the home visit is to be allowed as it presently stands than the warrant would serve no useful purpose.

In Camara, it served the purpose of creating a relationship between the client or the householder and the authority which sought to make the entry, but that's not necessary in this case.

The relationship is established and no -- the limitations are established and no warrant is necessary and finally, we have in the warrant, pardon me in the home visit situation, we have a pre-termination hearing which protects against any arbitrary use of authority before benefits can ever be terminated and this protects a client more so than in X party warrant procedure which would permit invasion, and would not permit the client to state his side of the case and would not protect against the kind of abuse that is suggested, the asking of the relevant questions, looking --

Justice William J. Brennan: (Inaudible) I gather until hearing, termination hearing, the decision following (Inaudible)?

Ms Brenda Soloff: They do Mr. Mr. Justice.

Justice William J. Brennan: That (Inaudible)

Ms Brenda Soloff: That's the decision of this Court basically in Goldberg against Kelly, so that that procedure protects.

One other suggestion is made that the warrant is necessary, because we are really looking for signs of criminal activity.

We are not really looking for signs of criminal activity.

That is another case.

It's possible that it could be excluded at a criminal proceeding, it's possible that it would be valid to introduce it at a criminal proceeding.

Justice William J. Brennan: And so have there been prosecutions based on --

Ms Brenda Soloff: I know of no prosecution that's based on results of a home visit and I might say that if information is required to be given no matter where it's given and if it's false in a really -- in a fraudulent sense, then it doesn't matter if it's given in the home or obtained for the home or if it's given in the office.

The same result can follow and the result would be too broad for a reasonable administrative purpose.

Justice Harry A. Blackmun: Ms. Soloff, am I not correct that the home visit has been established years and years and years as a social service caseworker's method of operating?

Ms Brenda Soloff: This is correct Mr. Justice.

It has been --

Justice Harry A. Blackmun: Do you concede in any way that it equates with a search in the criminal sense?

Ms Brenda Soloff: Not at all Mr. Justice, it does not.

We have not denied that the Fourth Amendment is a relevant aspect of this case, but it's the right of privacy and not the traditional, criminal search.

Justice Byron R. White: Does it make any difference to you if New York provided -- if the law provided that there would be a crime bar the case worker?

You don't report to give this caseworker the authority to header against anybody's will?

Ms Brenda Soloff: No we do not, we deny in that right.

Justice Byron R. White: Would it make any difference if New York law did purport to give the --

Ms Brenda Soloff: Then you come much closer to the Camara situation, but we don't --

Justice Byron R. White: I am really saying, what's your theory of really that your conditioning aid on the ability in respect of the home?

Ms Brenda Soloff: No, Mr. Justice, we are saying that we must be able to determine eligibility to the extent that it's conditioned.

It's conditioned on the furnishing of eligibility information.

Justice Byron R. White: Such as and that without a home visits, the information is furnished?

Ms Brenda Soloff: That's right in most cases.

Now, maybe at this hearing that it can be learned that the information is available without the home visit, but that really is a question for the agency and it's not for the client to exercise an option to decide how he is going to provide the information.

Thank you.

Justice Thurgood Marshall: Ms. Soloff when the application is made aren't they told that a part of this is that we will come to your home?

Ms Brenda Soloff: Yes, Mr. Justice, they are.

Justice Thurgood Marshall: And they understand that when they make their applications?

Ms Brenda Soloff: That's right Mr. Justice.

Justice Thurgood Marshall: You put any reliance on that?

Ms Brenda Soloff: We have, yes.

The fact that a client understands that this is an aspect of a visit would be, maybe a factor in his determining whether to pursue the application just as all other investigative aspects, maybe a factor in his determining whether or not he is going to pursue the application.

Chief Justice Warren E. Burger: Thank you Ms. Soloff.

Mr. Weiss you may proceed whenever you are ready.

Argument of Jonathan Weiss

Mr. Jonathan Weiss: Mr. Chief Justice and may it please the Court.

I should like to attempt to focus the argument on two crucial factors to present this case.

They are, the place involved, the act involved.

What's at stake here is an unwanted intrusion into the home.

The act is intrusion against the will into a person's private home.

There is no claim on behalf of the appellees that all homes visits are always bad when welfare recipients want welfare workers, or friends or caseworker at their home, no one has any complaint.

What's at stake here is the forcing, the insistence of a visit by a welfare caseworker, a person who is hired to check certain elementary facts in certain mechanical way, who has no training and no experience, a social worker who insists, however, of going into the home.

The facts of this case, I think, illustrate all the various dangers involved in such a forcing of a visit.

Unknown Speaker: (Inaudible) the only thing that can happen (Inaudible)?

Mr. Jonathan Weiss: No, there is much more that happens.

What happens as in this case, they have prior hearing as mandated by this Court in the case of Goldberg versus Kelly at which point a hearing officer who is not empowered to reach constitutional issues, who is not a lawyer, informs the welfare recipient all the regulations as in this case and then they terminate aid at that moment.

With that termination of aid, that was imminent that compelled the District Court in this case to issue a temporary restraining warrant.

Unknown Speaker: Say that again (Inaudible)?

Mr. Jonathan Weiss: That's correct, yes.

Unknown Speaker: (Inaudible)?

Mr. Jonathan Weiss: That is --

Unknown Speaker: (Inaudible)?

Mr. Jonathan Weiss: That's correct, Your Honor.

And that – when suit is from that as pointed out in the appellant's reply brief is the termination of aid and then in their concern for the child they may then decide what necessary steps I believe that is word of the appellant's reply brief.

Justice William J. Brennan: Now, (Inaudible) they replied, they say, well, the information is available without a home visit in this way, did that made the client do that ?

Mr. Jonathan Weiss: Yes, that's precisely what happened in this case and then aid was terminated.

At the hearing where Mrs. James is represented by counsel the Welfare Department informs it would give any information, any sort, any place, but that home but she did not want the you to visit.

The Welfare Department said the regulations means that because it's refusal, your aid must now be terminated, and it was terminated.

Justice William J. Brennan: Wait a minute.

I mean that even if the information is available by some other alternative to a home visit, the refusal of the home visit automatically results in a hearing officer's finding that aid is terminated?

Mr. Jonathan Weiss: That's correct, Your Honor.

Justice William J. Brennan: Is that what happened here?

Mr. Jonathan Weiss: That's what happened here, Your Honor.

So that all we are talking about in the prior hearing is merely internal administrative mechanical apparatus which leads the termination of aid, his refusal to permit an unwanted entry.

Justice Byron R. White: Yeah, but the only alternative to the home visit that was offered here was a testimony of the client?

Mr. Jonathan Weiss: Your Honor there --

Justice Byron R. White: Isn't that right?

Mr. Jonathan Weiss: The only -- no.

What the client said was, if you want specific information, tell me what you want and I will go any place, but here and give that information.

They then at that point had said to her, well, we need this and that, this and that.

I presume she would have offered it and I believe there was a nature of proffer at that moment.

Justice Byron R. White: Assume -- tell me is it your -- is it your suggestion that the Welfare Department must be and is required to take the client's word for certain facts?

Mr. Jonathan Weiss: I would say not, Your Honor.

No more than Internal Revenue Service is required to take the word of the taxpayer.

Justice Byron R. White: Let's assume that someone wants to verify that the children are actually living in a home rather than with relatives and the mother says, well, they are living in the house and the welfare department says they would like to go and check and make sure.

Your contention is that they may not do that without a warrant?

Mr. Jonathan Weiss: No more than in analogous case the Internal Revenue Service wished to check whether somebody had a dependent, in fact living with him or whether they had a robbery of various --

Justice Byron R. White: The answer is yes, you would say a warrant?

Mr. Jonathan Weiss: That's correct Your Honor.

Justice William J. Brennan: How do you satisfy the requirement of probable cause for warrant in this context?

Mr. Jonathan Weiss: Your Honor, it's our contention that there is really is no need for warrants in the case of welfare clients.

All the purposes served by warrants are gotten by warrants from other statutes.

If in fact you are worried about somebody misrepresenting, whether they are eligible, what resources they have.

If in fact they are doing that, they are liable under the statutes of fraud and a warrant could issue to ascertain that upon probable cause.

If we are dealing with specter of neglect and abuse which is not specter only for welfare clients, who suddenly become abusing, neglecting parents because they need money from the state for all people, if that specter arises, we proceed, we do for all families, that is, warrants issue under the Family Court Act.

There are warrants to cover every single possibility for the purposes of statutes.

There is no purpose in the welfare statute that I think, would require a warrant.

Justice Byron R. White: So you are say that the state just isn't entitled to make a home visit to verify what the mother has said?

Mr. Jonathan Weiss: That's correct, Your Honor unless --

Justice Byron R. White: You can't get a warrant because there is no probable cause and be -- and you can't go in without a warrant, because of the Fourth Amendment?

Mr. Jonathan Weiss: The intrusion at home is defined, the strictures are definable generally and specifically.

Generally, the assumption is and the whole historical meaning of the cases and the tradition of the Fourth Amendment are that no one should go into home except for matters of public safety, which would involve damage, for example, the children on neglect statutes, crimes, public menaces on their health, that is a category under which this Court deploying the Fourth Amendment, permits intrusion into the home.

That sort one of the intrusion, that's what general warrant for intrusion, you need a specific warrants on probable cause.

Justice Byron R. White: On the other hand --

Mr. Jonathan Weiss: Neither there is general nor the specifically on this case.

Justice Byron R. White: -- the issue seems to be then whether the state should be permitted to verify eligibility information by home visits?

Mr. Jonathan Weiss: There is a statutory scheme --

Justice Byron R. White: Isn't that the issue?

Mr. Jonathan Weiss: That's one of the issue.

There is a statutory scheme which allows for double-checking when there has been an misrepresentation just as we have for example again in the Internal Revenue Service.

If the Welfare Department has reason to believe that somebody has misrepresented their eligibility, then they can refer to the criminal branch to get a warrant to check whether it has been actual welfare fraud.

Justice William J. Brennan: What would be your view of this scheme by statute if it were to provide a client must permit home visits to continue receiving --?

Mr. Jonathan Weiss: The conditioning of the receipt of public benefits upon a surrender of a constitutional privilege is of course is unconstitutional.

Justice William J. Brennan: You would say the statute is unconstitutional?

Mr. Jonathan Weiss: I would say that any statute which permits that would be unconstitutional.

The HEW --

Justice William J. Brennan: And how do differ that from the requirements and inspection of plumbing in tenement house clause and as such?

Mr. Jonathan Weiss: As I was trying to suggest earlier the inspectors for plumbing and so on all deal with protecting lives outside that home.

They deal with problems of public safety.

Chief Justice Warren E. Burger: Just outside?

Is that all they are concerned with?

Mr. Jonathan Weiss: Well, if we look at the home, what we mean is a family unit inside a dwelling place, now that family unit can do such a destructive act one to the other that is as if they did out in the street.

I mean, we would tolerate murder in our home.

We will not tolerate other matters, and while we go in is that it is public act destructive of somebody in a home.

That's why we have emergency searches, that's why there are warrants for various and that's why they neglect petitions.

All these deal with destruction of somebody who are menace to the public health.

Chief Justice Warren E. Burger: Let me ask you this question Mr. Weiss, were you through, Mr. Justice Brennan?

Justice William J. Brennan: Yes.

Chief Justice Warren E. Burger: You have the foster home program in New York?

Mr. Jonathan Weiss: That's correct, Your Honor.

Chief Justice Warren E. Burger: Suppose, just hypothetically, the children are taken out of their normal home, put into a foster home of some family that has three children, as sometimes they will in the states.

There are provisions for visitation by social workers to those foster homes, are they not?

Mr. Jonathan Weiss: I believe so, Your Honor.

Chief Justice Warren E. Burger: These are private homes in the same sense as the home of the recipients of aid dependent children, I take it there is no difference, it's same kind of a private home?

Mr. Jonathan Weiss: In many cases, no doubt.

Chief Justice Warren E. Burger: Do you suggest that the State of New York in conducting surveillance to see that these foster homes need prescribed standards in the regulations, cannot have a visit to those foster homes, without a warrant?

Mr. Jonathan Weiss: I would make a sharp distinction between the creation of family and the dwelling or established family.

Chief Justice Warren E. Burger: Well, isn't this a substitute family environment, the foster home?

Mr. Jonathan Weiss: Yes, Your Honor, what I was trying to suggest is that when, in fact, they place a child with the family, when they're engaged in the process of creating that family unit, in that home, you have got to make visit, but once that family is established, once there is an ongoing family, they have placed that child there permanently, then I would say they have no warrant.

Chief Justice Warren E. Burger: Was a child ever placed permanently in a foster home?

Mr. Jonathan Weiss: There are permanent places in the foster homes, yes Your Honor.

Chief Justice Warren E. Burger: I can't conceive of the state making a permanent placement because if the child wasn't getting the care, they'd certainly remove it.

The state would have a duty, would it not?

Mr. Jonathan Weiss: I would believe the state would have the same duty towards that child as they have to any other child living in any other home.

When the parents are not properly caring for the child, the child would be removed in line with normal neglect proceeding --

Chief Justice Warren E. Burger: Then I can --

Mr. Jonathan Weiss: -- but there are establishments of foster homes.

There are permanent placements.

Chief Justice Warren E. Burger: Then I come back to my question.

Do you say that the State of New York in pursuance of its program of foster homes for the children cannot make an inspection of these foster homes in the conditions without a warrant?

Mr. Jonathan Weiss: I would say that you make inspection up to the point at which there is a permanent placement in the family establishment.

At that point, that family is like any other family, and they may not make the visits.

Now it seemed to be also a logic of our position in this case that once you have an established family, no matter what/how the state deals with it, be it that they take taxes, be they give welfare, they may not insist upon intruding against the will into those homes.

Chief Justice Warren E. Burger: Well, let's take an analogy then you referred to the income tax problems.

Suppose a taxpayer takes off and shows $8,000 in interest payments on loans during a given year, and $12,000 in contributions, and then in due course on an examination, the agent writes or calls and says, I would like to see your records and your canceled checks to support these payments, and the taxpayer says no.

No, these are private records, private papers, a man's most scared possession, you can't look at them, what do you think the Internal Revenue Service is going to do?

Mr. Jonathan Weiss: I would say within the dictates of cases such as Silverthron, they would probably issue some sort of process.

Chief Justice Warren E. Burger: Don't you think they just disallow, disallow the deduction in very short order?

Mr. Jonathan Weiss: Under the Internal Revenue Service, of course, the presumption is upon the taxpayer to prove certain types of deductions and they might do that on the grounds that they didn't have to come forward and show proof but that will not allow the Internal Revenue Service to go into that home.

Chief Justice Warren E. Burger: The consequence of not going into that home or the private files would be peremptory disallowance of those claims, couldn't it?

Mr. Jonathan Weiss: The consequence of not coming forth with evidence, not the consequence of refusal of entering into the home.

If the Internal Revenue Service said, to verify deductions, we must come to your home sometimes with notice, sometimes without notice.

The ability to compel the presence of your child, the threat of cutting off all your tax privileges and in fact attach your salary.

I would assume that this Court would find that type of insistence as unconstitutional, I hope we'll find the type of insistence now before for the Court.

Chief Justice Warren E. Burger: Now you seem to make a distinction Mr. Weiss.

You said the Internal Revenue Service places a burden on the taxpayer to do certain things in the statute.

Suppose the State of New York if it does not now do so, places a burden on the recipient of welfare aid as a condition to continue the receipt of that aid that they must allow inspections, wouldn't that be a parallel to the Internal Revenue illustration you gave me?

Mr. Jonathan Weiss: No, because the inspection, the intrusion of home is different than the request or demand for the proffering of the information.

There is nothing ingredient in the presentation of papers or facts.

They must be necessitated being in a home, but what's crucial about a home is how the people living in that home regard it not whether the government wants it as a convenience.

Chief Justice Warren E. Burger: But you still stand on your proposition that the foster home would not be subject to inspection without a warrant?

Mr. Jonathan Weiss: After this family has been established, that's correct, Your Honor.

Chief Justice Warren E. Burger: But how long after the children are placed in the foster home, does that happen in your view?

Mr. Jonathan Weiss: I have seen placements where the Welfare department was satisfied within a week and never returned again.

I've seen places that have had continued interest for a number of years.

Chief Justice Warren E. Burger: You mean they can go for a number of years without warrants?

Mr. Jonathan Weiss: I have seen them create families over a period of time, much longer perhaps made short, but over a period of time.

Justice Thurgood Marshall: Mr. Weiss, getting back into Internal Revenue, suppose an orphanage gets tax an exemption --

Mr. Jonathan Weiss: An orphanage?

Justice Thurgood Marshall: An orphanage, do you say that Internal Revenue could go to find if they have any children there?

Mr. Jonathan Weiss: No, I would say, of course, that could because that is a public institution using public funds, what we deal with here in this case is a family in a home.

Justice Thurgood Marshall: An orphanage is a public welfare, you say a private --

Mr. Jonathan Weiss: A private orphanage is taxable.

Justice Thurgood Marshall: Charitable contributions, that's the one I'm talking about.

Mr. Jonathan Weiss: It seems to me that they would have the right to check it out, where you check out any other organization making any other exemption.

Justice Thurgood Marshall: We're now getting closer to this case.

If there's an application for this assessment and found that they have three children living in that home.

Mr. Jonathan Weiss: The difference is, in one case you --

Justice Thurgood Marshall: They have to establish without a visit.

Mr. Jonathan Weiss: Establish the existence of children without a home visit, certainly.

Justice Thurgood Marshall: I said that they said they had three children living in this apartment, how can you establish that without a visit?

Mr. Jonathan Weiss: There are two answers.

One is, it's not clear you can establish with a visit, it's only possible to have three children there at certain times and I sleep here, I sleep there, I sleep there, and that will be true.

You have the same problem of verification of that phenomenon when you do it to any other.

You can ask, I suppose if that doesn't intrude into privacy, neighbors, you can ask them to prove it, you can see whether the children are registered at school, you can take all types of testimony you can for that.

Justice Thurgood Marshall: What about children that are under school age?

Mr. Jonathan Weiss: If they're under school age, you talk to whatever community health service they use, where they're registered.

Justice Thurgood Marshall: How could you establish that they live there and not with their grandparents?

Mr. Jonathan Weiss: I don't think you can establish anything in these matters beyond a certain point.

Justice Thurgood Marshall: Obviously, I understand now your position would be that the applicant says I have three children and that's it?

Mr. Jonathan Weiss: No, I think you go about trying to verify that fact to do any other fact.

You can't prove it to a certainty of, they sleep over one night, they sleep over five nights, ten nights or hundred nights somewhere else, when they does it end, when do they not live in there.

It's not clear, but in any event the fact that you insist upon going to the home at a certain point, and they claim that they give notice and sometimes they do, that is not going to prove anything at all.

Justice Thurgood Marshall: They did give notice --

Mr. Jonathan Weiss: They gave notice in this case and not given notice in others, and as their affidavits bear out, it's up to the case worker to decide when notice is appropriate, but leaving the notice issue aside, there is problem with verifying any claim any person makes about how he lives in his home.

There are claims all the time made for all sorts of purposes.

Justice John M. Harlan: What is in premise where (Inaudible) warrant is necessary and affidavit is presented for search warrants (Inaudible) probable cause (Inaudible) agency wants to establish whether she is qualified, would that be a probable cause?

Mr. Jonathan Weiss: That would be not be probable cause, I would think cases such as Gouled versus United States suggest that probable cause involves the use of an element to be admissible at a trial for the proof of something that goes to the statute, and I would think you would have to find, if in fact, warrants were necessary in the welfare area, certain specific items that were necessary to be found, only be found by a search in order to fulfill certain purposes of the welfare statute.

But the welfare statute as it now is, all they need to know is how is it claimed, and the fact of how many children are dependent upon that person, just as the Internal Revenue Service needs to know how many dependents are there when you fill out your tax forms.

Justice John M. Harlan: Well, suppose I have one more of my hypothetical.

Suppose an affidavit that also said (Inaudible) and find out (Inaudible)

Mr. Jonathan Weiss: Well, what it seemed -- as the amicus brief in this case points out, the practicality goes the other way, of course that lack of staff means you shouldn't make home visits, that's what the union of social worker say that.

Assuming they did, administrative convenience can never be an excuse for unconstitutional intrusions.

If the police department were to say, we are having trouble locating people who steal, we don't have staff, therefore we are going to make a blanket search of say, the area near 14th and Park Road here that would clearly be unconstitutional, so too is unconstitutional here, if they were, as it cannot be a claim that's more practical and more easy to make home visits to verify the simple questions of the size and nature of the family composition.

Justice Hugo L. Black: Mr. Weiss, I suppose you were called on by a lady to make a charitable constitution to her children.

She said she had three children under five, she was keeping them in a house, it was alright.

You said, I will make a contribution to them, but I want to come in and see if the children are in this house.

Would that be an unreasonable request on your part?

Mr. Jonathan Weiss: It depends on what our attitude towards those children were.

Justice Hugo L. Black: You don't have to give them anything in the first place.

Would that be an unreasonable request on your part?

Mr. Jonathan Weiss: It would depend on her attitude, if in fact she viewed it as an insult, an embarrassment.

Justice Hugo L. Black: If she did so, would it be, you would view it as an insult that you were meant to support her children?

Mr. Jonathan Weiss: I think she might.

Justice Hugo L. Black: She might.

Mr. Jonathan Weiss: I am not privy to all women psychologies at all times.

Justice Hugo L. Black: Is that the reason now you think it was reasonable for this lady to say, I am not going to let you come into this house, while you are supporting my children at all.

I come outside, I will go to your office, but you can't come in here and look at these children and see how I am taking care of.

Mr. Jonathan Weiss: Yes, what she was saying is that she an established here home as people --

Justice Hugo L. Black: Now, let's get away from establishment.

Home is not home, it's kept up by the chairs, it's given by the (Inaudible).

And do you think that there is no right to try to see it, that she is really taking care of them.

There are history there are incidents in the history of this country, by even parents, have not properly taken care of their infant children when they didn't wanted to do so.

Mr. Jonathan Weiss: That's correct.

Justice Hugo L. Black: Do you think it's unreasonable for them to want to look and see how they are taken are of?

The question is reasonableness?

Mr. Jonathan Weiss: Yes, Your Honor, I believe.

Justice Hugo L. Black: In fabric and everything is reasonableness.

I think it's unreasonable about this lady telling him, she won't let him come in, she won't talk to him in her house.

She doesn't want him to see her children there, that she will come out and talk to him at their office.

What's reasonableness?

Mr. Jonathan Weiss: What's reasonable about that is that it's reasonable that anybody in the history of civilization saying, my home is my private domain, and I do not want people there, I do not want, and it is my choice --

Justice Hugo L. Black: I don't want you there even though you support my children?

Mr. Jonathan Weiss: It is not true they support her children.

What is true is they supply money, support requires more than money, she supports her children, she raises them, she talks to them, she clothes them, she feeds them.

Justice Hugo L. Black: They will get insured from the government.

Mr. Jonathan Weiss: If you are getting to receiving money in order for her to rear her children, to raise them as every other family raises their children.

She is in receipt of money.

Justice Hugo L. Black: But most of them is of course who pay them to raise their children, but here she has asked to the state and the government to support her and it is doing it.

Mr. Jonathan Weiss: That's correct.

Justice Hugo L. Black: And you say it unreasonable for them to want to go in and see where she is keeping these children that they are supporting?

Mr. Jonathan Weiss: I am saying, it's reasonable for her to refuse as every other family.

Justice Hugo L. Black: It's a technical reason you are giving, isn't it?

It's not a reasonable one, going to everyday affairs of human being?

Mr. Jonathan Weiss: And I would say it is not typical and fundamental, which is the right of a family to insist on its privacy, in its own home.

Justice Hugo L. Black: Even though somebody else is supporting?

Mr. Jonathan Weiss: That's correct, Your Honor.

Justice Byron R. White: Mr. Weiss, suppose she applies for some kind of categorical aid like the hot water heater is gone out, we need a new hot water heater and they said, well, we'll be glad to give you one, we just have to come and make sure it's broken and see how big it is, and how much it's going to cost, and the things like that.

She says, sorry, just give me the heater, but don't come in the house and here is the same answer, I suppose?

Mr. Jonathan Weiss: That's correct, Your Honor.

Of course, it's true in New York that there is no longer any of these special grants as they were called, but if in fact --

Justice Byron R. White: They were though.

Mr. Jonathan Weiss: They were, Your Honor, if they came back -- if in fact, they believe that she were lying, she would be liable as anybody else who lies, the government is liable for criminal prosecutions and a warrant could issue to inspect that home to see if she lied about the presence or absence of a heater and she in fact had, she could then be prosecuted, and necessary steps taken.

Justice Byron R. White: But of course as long as the -- no one will ever have any idea that she was lying?

Mr. Jonathan Weiss: No more than anytime you fill out government forms of any sort.

All of those still are government forms anytime --

Justice Byron R. White: You usually don't get money every month when you fill out the forms.

Mr. Jonathan Weiss: But some of them will get much more money much more often, the welfare recipients.

Chief Justice Warren E. Burger: Mr. Weiss, how many people in New York are receiving one kind of aid and another in New York state?

Mr. Jonathan Weiss: I believe that New York, the welfare rolls in New York city are approximately 1,000,000 to 1,200,000.

I think it's the largest welfare --

Chief Justice Warren E. Burger: How big a staff do they now have if you know to operate?

Mr. Jonathan Weiss: I am sorry, I don't know that.

Chief Justice Warren E. Burger: In the California case last year, the record showed that for 500,000 people on welfare in Los Angeles county, they had 12,500 caseworkers.

Now if they have got to do what you've just said in response to Mr. Justice White, then it would take quite an army of caseworkers isn't it?

Mr. Jonathan Weiss: I don't believe so, Your Honor.

I don't believe that the majority of welfare recipients are anymore honest or dishonest then rest of us.

I don't believe that this would be matter for welfare workers, but if a welfare worker were to believe that a particular act of fraud had been committed, you refer to the police department.

Chief Justice Warren E. Burger: Well, do you think the -- in this hypothetical case, Mr. Justice White gave you that they would be justified in refusing to replace the heater until they could inspect the house?

Mr. Jonathan Weiss: I think it would not be justified no more than -- again the Internal Revenue Service would be justified in refusing something.

Chief Justice Warren E. Burger: But they do refuse a deduction if you don't let them inspect your records, don't they?

Mr. Jonathan Weiss: I think you can proffer the same sort of the evidence for a heater, bill of sale, bill of repair, that you would in fact the revenue service to report a robbery deduction, a proper certain types of proofs of sale.

Justice William J. Brennan: Mr. Weiss, may I ask, if you were to prevail what would be the effect of the decision upon the HEW regulation which is the (Inaudible) requires that some kind of sampling and a report as a condition I gather to continue participation in the federal program?

Mr. Jonathan Weiss: I do not think that all welfare recipients always refuse home visits.

Some welcome it, some welcome the conservation.

I would think of the people who are eager or willing to receive home visits, they would get an adequate sample for their purposes.

There are also are as the amicus from San Mateo county, would force this Court other HEW regulations which seemed in fact to militate against the type of home visit present in this case.

Those regulations I believe reflect the constitutional commands present in this case and manifested the injunction issued by the District Court.

Justice William J. Brennan: Could you sum up those --

Mr. Jonathan Weiss: The HEW regulation says that nobody should demand entrance, they should not go into homes without prior consent.

Yet that is what they seek to do here by saying, if you do not let us in, we will call off your welfare.

That of course was held to be unconstitutional coercion in the confession case of Lynumn versus Illinois, so to here this coercion and therefore not consent, I would say, waiver against the HEW regulation reflects, I believe a constitutional mandate.

In sum, I would say that what the welfare department seeks to do is send improper people into an inappropriate place to achieve results irrelevant to welfare statute which in fact violates fundamental constitutional rights.

Chief Justice Warren E. Burger: Thank you Mr. Weiss.

Ms. Soloff, in the case, I believe your time is expired.

Unless you have any factual matter that you want to make a correction of the record above.

Rebuttal of Brenda Soloff

Ms Brenda Soloff: I would just like to say that, I would address myself to Mr. Justice Brennan's first --

Chief Justice Warren E. Burger: Could you please just speak a little louder?

Ms Brenda Soloff: I am sorry.

Mr. Justice Brennan's first question to Mr. Weiss in respect to what can happen at a hearing.

It would appear that Mrs. James' assistance was terminated because of her refusal, but in point of fact as I said the referee did set out what the refusal was supposed to, what the visit was supposed to accomplish, and Mrs. James did not set forth any reason why the visit should not be made.

In fact her refusal was completely arbitrary.

We don't have another case in which -- at least there is none that has come to anybody's attention in which, assistance has been terminated solely for refusal to permit visit.

Justice William J. Brennan: Well I thought that is what Mr. Weiss said, the termination hearing amounts to nothing more than an inquiry, it was a refusal, and if it's found that it was refusal, then automatically an order is entered, terminating benefits.

You say that it's not so, so --

Ms Brenda Soloff: I say that we have no other case but this one, Mr. Justice and what happened in this case was that no reason was advanced why the visit should not be made and so that the flat face of the record appears to support that the position whereas it's not least bit necessary.

Justice William J. Brennan: But suppose that it had been said that, I can give you this information, whatever it is you want, without you making a home visit, this is the way I will supply it or whatever, that tender was made.

What would have been the result if the tender had been a satisfactory tender of evidence upon which it could be concluded no home visit was necessary?

Ms Brenda Soloff: Then I think it is up to -- again we're talking somewhat in the dark, that she did not go to a state fair hearing, but I think that the result would be up to the referee to determine if the department was correct that the option was unacceptable, that the alternative was unacceptable.

Justice Byron R. White: Doesn't the either a statute or a regulation require a home visit regularly?

Ms Brenda Soloff: The statute requires an initial home visit.

The regulation, pardon me the state regulation.

Thereafter it requires periodic contact which maybe by home visit, office visit, or another method.

It does not explicitly require that in all cases for a continuing eligibility there would be a home visit.

Justice Byron R. White: So --

Ms Brenda Soloff: So that the referee would have some latitude in this respect.

Justice Byron R. White: You mean the policy of New York as stated in the statute or in the regulation, does not -- is in fact that there must be a home visit in order to assure the welfare department of continued eligibility.

Ms Brenda Soloff: That's right.

Justice Byron R. White: So they must think that there is some other ways of doing it or that they just don't care actually.

Ms Brenda Soloff: It's not that they don't care, it's that there is the possibility, but that is alternative means, but that it's also possible that alternative means will not work.

In fact that home visit has been the traditional means of verifying.

Justice Byron R. White: What are that means whatever, worked in verifying just the fact that three children are living in the home?

Ms Brenda Soloff: I can't think that another one would work as effectively.

I mean that's the answer, that's the closest we can get, whether or not the state would allow or the Federal government would permit it to accept other evidence.

It's not constitutionally required to do so.

Chief Justice Warren E. Burger: I suppose if you had unlimited funds, you could put a 24 hours surveillance on the house and if for 30 days no children were seen coming or going, that might lead to an inference that they were either very ill or that there weren't any children there.

Ms Brenda Soloff: I suppose that, that is possible Mr. Justice.

What's happening here is the welfare programs are changing.

We are trying to reconcile the recognized dignity of the individual with the need to have a workable welfare program.

The home visit is changing in this respect too.

It is being adapted to the new programs and we are trying to see if the new programs work, and we simply don't know, and what what they are asking for that a declaration system or something very closely akin to it, be established as a constitutional variety at a time when the evidence simply is not in that works now.

Justice Hugo L. Black: Does the record show how many children they are and what are their ages and how much they draw?

Ms Brenda Soloff: Mrs. James says one child.

He is now, I guess, about three years old and I do not have the figure for a family of two under the revised standard of need in New York city at this time.

Justice Hugo L. Black: How much is contributed, anything for rent?

Ms Brenda Soloff: New York state case went separately from its grants for other --

Justice Hugo L. Black: Does she get anything for rent here?

Ms Brenda Soloff: Yes, New York pays rent apart from the --

Justice Hugo L. Black: How much does she get for the rent of the house in which she lived with the child?

Ms Brenda Soloff: I don't remember what her last -- her last rent that I recall was in the neighborhood of $100 a month, but I don't remember precisely because she has moved a number of times.

Justice Hugo L. Black: How big is the house?

Is it an apartment or a house?

Ms Brenda Soloff: It's an apartment, It's an apartment I believe, it's three or four rooms.

Chief Justice Warren E. Burger: Ms. Soloff, if you have heard my hypothetical, a factual situation I presented to Mr. Weiss about the foster homes.

If you know, if you are familiar with the regulations and the procedure, does New York state or its subdivisions conduct periodic visitation to foster homes where they place children for time to time?

Ms Brenda Soloff: I believe it does, but I can't cite the section of the law in which that happens, it would be under the family law, I think.

Chief Justice Warren E. Burger: But certainty, it'd be astonishing if they place children in home and then made no check on them to determine whether they were being properly cared for wouldn't it?

Ms Brenda Soloff: They do.

I am quite sure they check foster homes, they check the adopted homes.

Chief Justice Warren E. Burger: Thank you.

Ms Brenda Soloff: Thank you.

Chief Justice Warren E. Burger: Thank you Ms. Soloff.

The case is submitted.