{ "id": 11434848, "name": "In the Matter of: JOANIE STUMBO, STEVEN STUMBO, SCOTT STUMBO, UNKNOWN STUMBO", "name_abbreviation": "In re Stumbo", "decision_date": "2001-05-15", "docket_number": "No. COA00-408", "first_page": "375", "last_page": "387", "citations": [ { "type": "official", "cite": "143 N.C. App. 375" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "821 F.2d 913", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1699950 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/f2d/821/0913-01" ] }, { "cite": "146 L. Ed. 2d 776", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "529 U.S. 1098", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9580097, 9580200, 9580013, 9579917, 9580303, 9580498, 9579827, 9580404, 9580597, 9580696 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/529/1098-04", "/us/529/1098-05", "/us/529/1098-03", "/us/529/1098-02", "/us/529/1098-06", "/us/529/1098-08", "/us/529/1098-01", "/us/529/1098-07", "/us/529/1098-09", "/us/529/1098-10" ] }, { "cite": "193 F.3d 581", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11563549 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/f3d/193/0581-01" ] }, { "cite": "202 F.3d 1126", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 917837 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/f3d/202/1126-01" ] }, { "cite": "186 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572651, 8572684, 8572723, 8572669, 8572702 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0495-01", "/nc/280/0495-03", "/nc/280/0495-05", "/nc/280/0495-02", "/nc/280/0495-04" ] }, { "cite": "185 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "259-60" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549978 ], "year": 1971, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0039-01" ] }, { "cite": "219 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554880 ], "year": 1975, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0538-01" ] }, { "cite": "529 U.S. 266", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9508406 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "270", "parenthetical": "\"an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity\"" }, { "page": "260", "parenthetical": "\"an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity\"" } ], "opinion_index": 1, "case_paths": [ "/us/529/0266-01" ] }, { "cite": "400 U.S. 309", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047000 ], "weight": 2, "year": 1971, "pin_cites": [ { "parenthetical": "Fourth Amendment not implicated by inspection of home of recipient of monies under the Aid to Families with Dependent Children because the refusal to permit the inspection resulted only in loss of benefits, with no criminal penalties" }, { "parenthetical": "Fourth Amendment not implicated by inspection of home of recipient of monies under the Aid to Families with Dependent Children because the refusal to permit the inspection resulted only in loss of benefits, with no criminal penalties" } ], "opinion_index": 1, "case_paths": [ "/us/400/0309-01" ] }, { "cite": "293 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "785" } ], "opinion_index": 1 }, { "cite": "306 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571210 ], "year": 1982, "pin_cites": [ { "page": "473" } ], "opinion_index": 1, "case_paths": [ "/nc/306/0466-01" ] }, { "cite": "469 U.S. 325", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959437 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "341", "parenthetical": "Powell, J., concurring" }, { "page": "734", "parenthetical": "Powell, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/us/469/0325-01" ] }, { "cite": "489 U.S. 602", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032926 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "633", "parenthetical": "drug testing of railroad employees" }, { "page": "670", "parenthetical": "drug testing of railroad employees" } ], "opinion_index": 1, "case_paths": [ "/us/489/0602-01" ] }, { "cite": "480 U.S. 709", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131361 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "719", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "724", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "726" }, { "page": "729", "parenthetical": "search of public employee's desk by employer" } ], "opinion_index": 1, "case_paths": [ "/us/480/0709-01" ] }, { "cite": "490 U.S. 386", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605535 ], "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "\"seizure\" under the Fourth Amendment occurs when government actors \"by means of [a] physical force or show of authority ... in some way restraint] the liberty of a citizen\"" }, { "parenthetical": "\"seizure\" under the Fourth Amendment occurs when government actors \"by means of [a] physical force or show of authority ... in some way restraint] the liberty of a citizen\"" } ], "opinion_index": 1, "case_paths": [ "/us/490/0386-01" ] }, { "cite": "69 U.S.L.W. 4184", "category": "reporters:specialty", "reporter": "U.S.L.W.", "weight": 4, "year": 2001, "pin_cites": [ { "page": "4187", "parenthetical": "testing of urine for drugs by private hospital is search by state actor" }, { "page": "4188" }, { "page": "4189-90", "parenthetical": "testing for drugs in pregnant women" }, { "page": "4190" } ], "opinion_index": 1 }, { "cite": "821 F.2d 913", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1699950 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/f2d/821/0913-01" ] }, { "cite": "146 L. Ed. 2d 776", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 1 }, { "cite": "529 U.S. 1098", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9580097, 9580200, 9580013, 9579917, 9580303, 9580498, 9579827, 9580404, 9580597, 9580696 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/us/529/1098-04", "/us/529/1098-05", "/us/529/1098-03", "/us/529/1098-02", "/us/529/1098-06", "/us/529/1098-08", "/us/529/1098-01", "/us/529/1098-07", "/us/529/1098-09", "/us/529/1098-10" ] }, { "cite": "193 F.3d 581", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11563549 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "602" }, { "page": "601" } ], "opinion_index": 1, "case_paths": [ "/f3d/193/0581-01" ] } ], "analysis": { "cardinality": 1094, "char_count": 31625, "ocr_confidence": 0.755, "pagerank": { "raw": 2.0780933730712608e-07, "percentile": 0.7586739613004465 }, "sha256": "2df46c4274e8ed981bb5ed7cb4c3f6c862c34ec5b10e4b93eece65de55048f76", "simhash": "1:00ebc537bd482df2", "word_count": 5091 }, "last_updated": "2023-07-14T21:26:47.079244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge GREENE dissents." ], "parties": [ "In the Matter of: JOANIE STUMBO, STEVEN STUMBO, SCOTT STUMBO, UNKNOWN STUMBO" ], "opinions": [ { "text": "HUDSON, Judge.\nJames and Mary Ann Stumbo (respondents) appeal from an order entered 25 January 2000 instructing them to cease their obstruction of and interference with an investigation by the Cleveland County Department of Social Services (DSS) pursuant to a report of child neglect concerning respondents\u2019 daughter, Jonie Stumbo. We affirm the order of the trial court.\nArticle 3 (\u201cScreening of Abuse and Neglect Complaints\u201d) of the \u201cJuvenile Code\u201d (set forth in Chapter 7B of our General Statutes) provides a comprehensive system for reporting and investigating allegations of child abuse and child neglect in North Carolina. The first statute in Article 3, entitled \u201cProtective services,\u201d provides in pertinent part:\nThe director of the department of social services in each county of the State shall establish protective services for juveniles alleged to be abused, neglected, or dependent. Protective services shall include the investigation and screening of complaints, casework, or other counseling services to parents, guardians, or other caretakers as provided by the director to help the parents, guardians, or other caretakers and the court to prevent abuse or neglect, to improve the quality of child care, to be more adequate parents, guardians, or caretakers, and to preserve and stabilize family life.\nN.C.G.S. \u00a7 7B-300 (1999). The next statute in Article 3, entitled \u201cDuty to report abuse, neglect, dependency, or death due to maltreatment,\u201d provides in pertinent part:\nAny person . . . who has cause to suspect that any juvenile is abused, neglected, or dependent. . . shall report the case of that juvenile to the director of the department of social services in the county where the juvenile resides or is found.\nN.C.G.S. \u00a7 7B-301 (1999). The third statute in Article 3, entitled \u201cInvestigation by director; access to confidential information; notification of person making the report,\u201d provides in pertinent part:\n(a)When a report of abuse, neglect, or dependency is received, the director of the department of social services shall make a prompt and thorough investigation in order to ascertain the facts of the case, the extent of the abuse or neglect, and the risk of harm to the juvenile, in order to determine whether protective services should be provided or the complaint filed as a petition. . . . When the report alleges neglect or dependency, the director shall initiate the investigation within 72 hours following receipt of the report. The investigation and evaluation shall include a visit to the place where the juvenile resides.\nN.C.G.S. \u00a7 7B-302 (1999). The fourth statute in Article 3, entitled \u201cInterference with investigation,\u201d provides in pertinent part:\n(a) If any person obstructs or interferes with an investigation required by G.S. 7B-302, the director may file a petition naming said person as respondent and requesting an order directing the respondent to cease such obstruction or interference. The petition shall contain the name and date of birth and address of the juvenile who is the subject of the investigation, shall specifically describe the conduct alleged to constitute obstruction of or interference with the investigation, and shall be verified.\n(b) For purposes of this section, obstruction of or interference with an investigation means refusing to disclose the whereabouts of the juvenile, refusing to allow the director to have personal access to the juvenile, refusing to allow the director to observe or interview the juvenile in private, refusing to allow the director access to confidential information and records upon request pursuant to G.S. 7B-302, refusing to allow the director to arrange for an evaluation of the juvenile by a physician or other expert, or other conduct that makes it impossible for the director to carry out the duty to investigate.\n(c) Upon filing of the petition, the court shall schedule a hearing to be held not less than five days after service of the petition and summons on the respondent. ... If at the hearing on the petition the court finds by clear, cogent, and convincing evidence that the respondent, without lawful excuse, has obstructed or interfered with an investigation required by G.S. 7B-302, the court may order the respondent to cease such obstruction or interference. The burden of proof shall be on the petitioner.\nN.C.G.S. \u00a7 7B-303 (1999). These statutes provide the legal framework within which the events in the present case transpired.\nThe evidence presented at the 28 September 1999 hearing tended to show the following facts. On 9 September 1999, Tasha Lowery, a child protective services investigator for DSS, received a report that a naked, two-year old child had been seen unsupervised in the driveway of a house in Kings Mountain. Lowery drove to the house to investigate. A woman came out of the house and introduced herself as Mrs. Stumbo. Lowery introduced herself to Mrs. Stumbo and explained why she was there. Lowery further explained to Mrs. Stumbo that, as part of her investigation, she needed to speak with the children privately. In response, Mrs. Stumbo indicated that she would need to contact her husband. This conversation took place outside of the home in the driveway. During the conversation, two children were playing outside. Mrs. Stumbo then contacted Mr. Stumbo at work, using a cordless phone to call him while she and Lowery remained outside in the driveway. Lowery then spoke on the phone to Mr. Stumbo. Lowery introduced herself to Mr. Stumbo over the phone and explained why she was at his home. Mr. Stumbo briefly tried to explain how it was that the two-year old had been out in the yard naked and unattended. He also agreed to come home from work to talk further with Lowery.\nWhile Mr. Stumbo was on his way home, Mrs. Stumbo called an attorney. Lowery spoke with the attorney on the phone and explained who she was and why she was there. At one point, apparently while waiting for Mr. Stumbo to arrive, Lowery went around to the back of the home with Mrs. Stumbo and sat on the back deck. At that time she was close enough to all four of the Stumbo children to observe them in detail. She did not see any bruises, marks, or other behavior to lead her to suspect abuse or neglect. She refrained from asking the children any questions because she had been asked by Mrs. Stumbo not to speak with the children, and she was honoring that request. Lowery testified that Mrs. Stumbo was in an \u201cuproar,\u201d that Mrs. Stumbo indicated she had a headache or that something was wrong, that she needed to see a neurologist, and that she didn\u2019t have time for the investigation. Mr. Stumbo arrived home after approximately twenty or thirty minutes, and spoke with Lowery. Mr. Stumbo told Lowery that he felt he had a privacy right to refuse to allow her to interview his children, and to refuse to allow her to enter his home, because he felt there was no good reason for the investigation. Lowery told Mr. Stumbo that it was the policy of DSS to interview children who are the subjects of an investigation. After this conversation, the family went into the house and closed the door, and Lowery left. Lowery testified that she requested to speak to the children privately at least three times during the incident but was unable to complete her investigation because Mr. and Mrs. Stumbo did not allow her to conduct any interviews with the children. She also testified that she never asked to enter the house.\nOn 16 September 1999, DSS filed a \u201cpetition to prohibit interference with or obstruction of child protective services investigation\u201d pursuant to G.S. \u00a7 7B-303. Respondents filed a brief opposing the petition. The cause came before the Cleveland County Juvenile Court for hearing on 28 September 1999. At the hearing, having heard the arguments by both parties, the trial court explained its view that because the investigation did not involve a \u201csearch\u201d or a \u201cseizure,\u201d the Fourth Amendment did not apply and no probable cause showing was necessary.\nThe trial court entered an order on 25 January 2000, making seven findings of fact, including:\n4. ... Ms. Lowery was not allowed to speak with the children nor was she allowed to go into the house. . . . Tasha Lowery made at least three requests to speak with the children and was denied. Ms. Lowery is required to conduct a private [interview] with all the children in the household. . . .\n7. N.C. General Statute 7B-303 specifically provides that obstructing or interfering with an investigation includes the denial of private interviews with the juveniles.\nThe trial court concluded that respondents obstructed or interfered with the investigation \u201cby refusing to allow Tasha Lowery as a representative of the Director of Social Services for Cleveland County, to observe or interview the Juveniles in private without lawful excuse.\u201d The trial court ordered respondents to permit DSS \u201cto conduct an investigation as required by 7B-302,\u201d and ordered respondents not to interfere with or obstruct \u201cthe investigation as set forth in 7B-303(a) and 7B-303(b).\u201d Respondents appeal from this order.\nOn appeal, respondents raise four assignments of error. We first address respondents\u2019 assignments of error numbered 2, 3 and 4, all of which involve one distinct set of interrelated arguments. These arguments are: (1) that social workers conducting a DSS investigation are \u201cstate actors\u201d for Fourth Amendment purposes; (2) that the investigation mandated by G.S. \u00a7 7B-302 requires that the investigating social worker enter the home in question, and conduct private interviews with the children; (3) that entry into the household by a social worker is a \u201csearch,\u201d and a private interview of a juvenile by a social worker is a \u201cseizure,\u201d both requiring probable cause under the Fourth Amendment; and (4) that the trial court\u2019s order, instructing respondents to cease interfering with and obstructing the investigation, constitutes reversible error because (a) it is a warrant issued without probable cause, and (b) the \u201clawful excuse\u201d provision in G.S. \u00a7 7B-303(c) allows parents to interfere with and obstruct a child neglect investigation on Fourth Amendment grounds. Respondents have expressly stated that they do not contend that G.S. \u00a7 7B-303 is, in and of itself, unconstitutional.\nWhether a search or a seizure has, in fact, occurred is always a threshold question that must be resolved before determining whether the protections guaranteed by the Fourth Amendment apply. See State v. Raynor, 27 N.C. App. 538, 540, 219 S.E.2d 657, 659 (1975). \u201cA search ordinarily involves prying into hidden places, and a seizure contemplates forcible dispossession.\u201d State v. Fry, 13 N.C. App. 39, 44, 185 S.E.2d 256, 259-60 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 514 (1972). Here, we need not reach respondents\u2019 contention that social workers conducting a DSS investigation of child neglect are state actors for Fourth Amendment purposes because this case involves neither a search nor a seizure and, therefore, does not implicate respondents\u2019 Fourth Amendment rights.\nRespondents\u2019 contentions that an investigation pursuant to G.S. \u00a7 7B-302 requires entry into the home, that Lowery did, in fact, seek entry into the home in this case, and that the trial court\u2019s order \u201cwas a judicial warrant for a search of the Stumbo home\u201d are without merit. Respondents have attempted to portray this case as involving a direct conflict between respondents\u2019 right to refuse entry into their home, and the statutory investigation mandated by G.S. \u00a7 7B-302. For example, in their brief to this Court, respondents contend that Lowery testified at the hearing that when she arrived at respondents\u2019 home she asked \u201cto be allowed to enter the home and to interview each of the children privately.\u201d Further, counsel for respondents argued to the trial court at the hearing that DSS, through Lowery, sought to \u201center the home without probable cause.\u201d To the contrary, Lowery testified that she never asked to enter the home, and there is no testimony in the transcript or other evidence in the record to contradict this assertion. Furthermore, Lowery testified that when she spoke with Mr. Stumbo on the phone, \u201c[she] told him that [she] needed to talk with everybody in the household\u201d and that she has been trained to \u201cmake a home visit, talk with the parents privately and talk with the children privately in order to conduct the investigation.\u201d Thus, the evidence clearly indicates that Lowery was seeking merely to interview the children in private, and did not at any time seek to enter the home.\nFurthermore, entry into the home does not appear to be required under the statutory scheme. G.S. \u00a7 7B-302(a) states that an investigation pursuant to a report of abuse or neglect \u201cshall include a visit to the place where the juvenile resides.\u201d As noted by the dissent, similar language is found in the North Carolina Administrative Code. See N.C. Admin. Code tit. 10, r. 411.0305 (January 2001). Although this provision in G.S. \u00a7 7B-302(a) is somewhat ambiguous, we believe \u201ca visit to the place where the juvenile resides\u201d means merely a personal visit to the home as distinguished from, for example, an investigation conducted by telephone interviews, or an investigation consisting of interviews conducted at the offices of DSS. We do not read this language as requiring physical entry into the home itself. Thus, a visit such as the one that occurred in this case, where a social worker personally drives to the home and seeks to speak with the children in person but does not seek to enter the home, would constitute \u201ca visit to the place where the juvenile resides.\u201d\nMoreover, the trial court\u2019s order does not authorize entry into the home. The order simply finds that respondents \u201cobstructed or interfered with this investigation by refusing to allow Tasha Lowery ... to observe or interview the Juveniles in private,\u201d and orders respondents \u201cto not obstruct, interfere with the investigation as set forth in 7B-303(a) and 7B-303(b).\u201d The dissent appears to interpret the trial court\u2019s finding that \u201cMs. Lowery is required to conduct a private [interview] with all the children in the household\u201d as a finding that Ms. Lowery is required to conduct an interview of the children while physically inside of the house. However, we believe the phrase \u201cin the household\u201d was intended to modify the phrase \u201call the children,\u201d such that \u201call the children in the household\u201d was intended to mean \u201call the children in the family,\u201d or \u201call the children who live in the household.\u201d\nAs to whether this case involves a \u201cseizure,\u201d respondents cite three cases in support of the proposition that a private interview with a child for purposes of a DSS investigation of neglect or abuse is a \u201cseizure.\u201d These cases do not stand for this proposition. In Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000), police officers seized two children from their home without a court order, placed the children in a county institution for several days, and subjected them to highly invasive anal and vaginal physical examinations without judicial authorization and without notifying their parents. In Tenenbaum v. Williams, 193 F.3d 581 (2d. Cir. 1999), cert. denied, 529 U.S. 1098, 146 L. Ed. 2d 776 (2000), a DSS caseworker removed a juvenile from school without parental permission or a court order and the juvenile was then subjected to a vaginal and anal medical examination at a hospital emergency room. In Robinson v. Via, 821 F.2d 913 (2d Cir. 1987), a state assistant attorney and a state trooper investigating a child abuse allegation seized two juveniles without a court order and against the mother\u2019s will (the seizure required forcibly restricting the mother). The juveniles were taken to the police barracks where they remained for over two hours until a temporary custody order was entered by a judge. Obviously, these cases are very different from the circumstances here, where the social worker merely sought to carry out the mandate of the statute by interviewing the children in private. The cases cited by respondents do not compel the conclusion that a private interview with a child, pursuant to a child abuse or neglect investigation, necessarily constitutes a \u201cseizure\u201d warranting Fourth Amendment protection.\nBecause it is not squarely before us, we need not reach the issue of whether the \u201clawful excuse\u201d provision in G.S. \u00a7 7B-303(c) permits parents to interfere with or obstruct a child neglect or abuse investigation on Fourth Amendment grounds where a search or a seizure has occurred without probable cause. The facts here do not involve a search or a seizure, and the relevant statutory scheme does not require any conduct by DSS that necessarily constitutes a search or a seizure. Therefore, this case does not implicate the Fourth Amendment rights of respondents. Accordingly, we hold that the trial court\u2019s order, instructing respondents to cease interfering with and obstructing the investigation, does not constitute error. Moreover, we hold that the \u201clawful excuse\u201d provision in G.S. \u00a7 7B-303(c) does not permit parents to interfere with or obstruct a child neglect or abuse investigation on Fourth Amendment grounds where neither a search nor a seizure is involved. Thus, respondents must comply with the trial court\u2019s order, including permitting DSS to conduct private interviews with their children.\nIn their fourth and final assignment of error, respondents contend that the trial court erred by excluding certain testimony offered at the hearing. At the hearing, respondents sought to admit testimony regarding how their daughter Jonie came to be found outside of the home naked and unattended. As the trial court explained at the hearing, the purpose of a G.S. \u00a7 7B-303(c) hearing is to determine whether the respondents have obstructed or interfered with the investigation without lawful excuse, not to determine whether the underlying incident which led to the allegation of neglect or abuse actually involved neglect or abuse. The trial court was correct in its interpretation of the purpose of such a hearing, and did not err in excluding the evidence in question. This assignment of error is overruled.\nAffirmed.\nJudge McCULLOUGH concurs.\nJudge GREENE dissents.", "type": "majority", "author": "HUDSON, Judge." }, { "text": "GREENE, Judge,\ndissenting.\nBecause I believe the investigation ordered in this case and mandated by section 7B-302 constitutes a search within the meaning of the Fourth Amendment, I dissent.\nSection 7B-302 mandates the Director of the Department of Social Services (the Director) to make a \u201cprompt and thorough investigation\u201d of all reports of abuse, neglect, and dependency. N.C.G.S. \u00a7 7B-302(a) (1999). Although the statute does not define what is required to accomplish a \u201cthorough investigation,\u201d it does provide the \u201cinvestigation ... shall include a visit to the place where the juvenile resides.\u201d Id. The statute also provides the Director is to \u201chave personal access to the juvenile\u201d and interview the child in private. N.C.G.S. \u00a7 7B-303(b) (1999). The North Carolina Administrative Code (Code) sets out, in some detail, the requirements for a \u201cthorough\u201d investigation. 10 NCAC 411.0305 (June 2000). The Code mandates the Director, among other things, assess \u201cwhether the specific environment in which the child or children is found meets the child\u2019s or children\u2019s need for care and protection^\u201d make a \u201cvisit to the place where the child or children reside,\u201d and interview the \u201cvictim child.\u201d 10 NCAC 411 .0305 (a),(d) & (e) (June 2000). Thus, the Director is required to make an inspection of the residence in which the child (the subject of the child abuse/neglect report) resides, necessitating an entry into the home, and to speak personally with the reported victim child.\nEntry into the home of a person suspected of child abuse/neglect by the Director for the purpose of ascertaining if the child has been abused/neglected is a search by a government actor and thus implicates the Fourth Amendment. Cf. Ferguson v. Charleston, U.S. -, \u2014 , - L. Ed. 2d -, -, 69 U.S.L.W. 4184, 4187 (2001) (testing of urine for drugs by private hospital is search by state actor). An interview of a reported victim child by the Director, without the consent of the child\u2019s parents, constitutes a seizure of the child within the meaning of the Fourth Amendment. See Graham v. O\u2019Connor, 490 U.S. 386, 395 n.10, 104 L. E. 2d 443, 455 n.10 (1989) (\u201cseizure\u201d under the Fourth Amendment occurs when government actors \u201cby means of [a] physical force or show of authority ... in some way restraint] the liberty of a citizen\u201d); see also Tenebaum v. Williams, 193 F.3d 581, 602 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 146 L. Ed. 2d 776 (2000). This Fourth Amendment right can be asserted by the child\u2019s parents on behalf of the child. Tenebaum, 193 F.3d at 601.\nWhether the search or seizure violates the teaching of the Fourth Amendment is dependent on the reasonableness of the search or seizure, as only unreasonable searches and seizures are proscribed. Whether the search or seizure is reasonable requires balancing the intrusion of the individual\u2019s interest in privacy against the \u201cimportance of the governmental interests alleged to justify\u201d the search. O'Connor v. Ortega, 480 U.S. 709, 719, 94 L. Ed. 2d 714, 724 (1987) (internal quotation marks and citation omitted). Stated another way, a party\u2019s interest in privacy must be balanced against some \u201cspecial need\u201d advanced by the State. Ferguson, - U.S. at -, \u2014 L. Ed. 2d at , 69 U.S.L.W. at 4188. Depending on the strength of the competing interest, our courts have on occasion: completely suspended probable cause, Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 633, 103 L. Ed. 2d 639, 670 (1989) (drug testing of railroad employees); required a showing of probable cause, Ferguson, - U.S. at -, - L. Ed. 2d at -, 69 U.S.L.W. at 4189-90 (testing for drugs in pregnant women); and required a showing of reasonable suspicion, O\u2019Connor, 480 U.S at 726, 94 L. Ed. 2d at 729 (search of public employee\u2019s desk by employer); New Jersey v. T.L.O., 469 U.S. 325, 341, 83 L. Ed. 2d 720, 734 (1985) (Powell, J., concurring) (\u201c[w]here 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,\u201d our courts \u201chave not hesitated to adopt such a standard\u201d).\nThe privacy interest of property owners/lessees (home owner) in their property is, without dispute, substantial. The right of any person, including minor children, to be free from governmental seizure is substantial. Likewise, governmental interest in protecting the safety and well-being of children is substantial and is well served by mandating a timely section 7B-302 investigation of reports of child abuse/neglect. This substantial governmental interest must, however, be weighed in the context of the Director\u2019s obligation to \u201cmake an immediate oral and subsequent written report\u201d of its findings to the district attorney and the \u201cappropriate local law enforcement agency.\u201d N.C.G.S. \u00a7 7B-307(a) (1999). The district attorney, after receipt of this report, is required to initiate a criminal investigation and determine whether criminal prosecution is appropriate. Id. Indeed, this statutorily mandated disclosure to law enforcement \u201cprovides an affirmative reason for enforcing the strictures of the Fourth Amendment.\u201d Ferguson, - U.S. at -, - L. Ed. 2d at -, 69 U.S.L.W. at 4190. Furthermore, if the person suspected of child abuse/neglect fails to comply with a section 7B-303 order directing non-interference with the investigation, that person can be imprisoned pursuant to a finding of civil or criminal contempt, thus, further subjecting the person to criminal penalties. N.C.G.S. \u00a7 7B-303(f) (1999).\nA proper balance of these competing interests suggests an intermediate standard of reasonableness as a prerequisite to obtaining a section 7B-303(c) order. In other words, the Director must be required to show by clear and convincing evidence there are reasonable grounds for suspecting a person(s) has abused/neglected the child being investigated and has, without lawful excuse, obstructed or interfered with the investigation mandated by section 7B-302. Because of the substantial governmental interest in protecting children and the need to act quickly, as well as the additional time likely required to gather evidence in support of probable cause, it would be ill advised to utilize the probable cause standard. Also, due to the sanctity of private dwellings and the potential for criminal investigation/prosecution arising from the section 7B-302 investigation, a total suspension of the probable cause standard is not appropriate. A total suspension would permit entry into a home and interviews with the reported victim child, based simply on a totally unsubstantiated report of abuse/neglect, as long as there is a showing that the home owner/person \u201cwithout lawful excuse, has obstructed or interfered with [the] investigation.\u201d N.C.G.S. \u00a7 7B-303(c) (1999).\nIn this case, the trial court entered an order directing respondents not to obstruct or interfere with any investigation by DSS \u201cas required by 7B-302.\u201d As this investigation mandated DSS inspect the residence in which the child lived to interview Joanie Stumbo, the trial court was required, prior to issuing a section 7B-303(c) order, to make a finding there existed reasonable grounds for suspecting the respondents had abused/neglected Joanie Stumbo. The failure to make this finding requires reversal of the order. This case must be remanded for a new hearing, at which time DSS must be given the opportunity to present new evidence.\n. The majority construes section 7B-302(a) as only requiring \u201ca personal visit to the home\u201d and not \u201cphysical entry into the home itself.\u201d I disagree. Without physically entering the home, the Director would be unable to assess whether the environment in which the child is found meets the child\u2019s need'for care and protection.\n. A parent or other person providing care to or supervision of a child less than 16 years of age is subject to prosecution for criminal child abuse. N.C.G.S. \u00a7\u00a7 14-318.2 & 14-318.4 (1999). More generally, parents have \u201can affirmative legal duty to protect and provide for their minor children,\u201d State v. Walden, 306 N.C. 466, 473, 293 S.E.2d 780, 785 (1982), and a violation of this duty is a misdemeanor, N.C.G.S. \u00a7 14-316.1 (1999).\n. Because a person refusing to open his house for inspection by a social worker investigating a report of child abuse/neglect does subject himself to imprisonment, this situation is different from the facts presented in Wyman v. James, 400 U.S. 309, 27 L. Ed. 2d 408 (1971) (Fourth Amendment not implicated by inspection of home of recipient of monies under the Aid to Families with Dependent Children because the refusal to permit the inspection resulted only in loss of benefits, with no criminal penalties).\n. An anonymous report of abuse/neglect, which is permitted under section 7B-301, would rarely, in itself, constitute reasonable grounds for suspecting a person to have abused/ neglected a child. Cf. Florida v. J.L., 529 U.S. 266, 270, 146 L. Ed. 2d 254, 260 (2000) (\u201can anonymous tip alone seldom demonstrates the informant\u2019s basis of knowledge or veracity\u201d) (internal quotation marks and citations omitted).\n. I do note the Legislature has mandated use of the probable cause standard for issuance of an ex parte order entered pursuant to section 7B-303(d). N.C.G.S. \u00a7 7B-303(d) (1999) (there must be \u201cprobable cause to believe ... the juvenile is at risk of immediate harm\u201d). This is an obvious recognition by our Legislature of the need to protect the privacy interest of the person to be investigated in the face of a report of abuse/neglect of a child.\n. The evidence in the record reveals the DSS worker (agent of the Director) testified the respondents did not allow her to conduct interviews with the children and did not allow her to enter the house. The petition filed seeking the section 7B-303(c) order alleges respondents\u2019 attorney \u201cadvised [respondents] not to allow a private interview with the children nor access [to] their home.\u201d The trial court found as fact that the DSS worker \u201cwas not allowed to speak with the children nor was she allowed to go into the house.\u201d The trial court further found the DSS worker \u201cis required to conduct a private [interview] with all the children in the household.\u201d\n. It is not every investigative act of the Director that implicates the Fourth Amendment. For examples: the Director is to interview any person identified in the report \u201chaving information concerning the condition of the child[;]\u201d the Director is to review any school, medical, etc. records that may provide information about the child; and the Director \u201cshall check the county agency\u2019s records and the North Carolina Central Registry of child abuse, neglect, and dependency reports to ascertain if any previous reports . . . have been made.\u201d 10 NCAC 411.0305(b),(g) & (h)(4).", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Church, Paksoy & Wray, by John D. Church, for petitioner-appellee.", "Home School Legal Defense Association, by Michael P. Farris and Scott W. Somerville, and Stam, Fordham & Danchi, PA., by Paul B. Stam, for respondents-appellants." ], "corrections": "", "head_matter": "In the Matter of: JOANIE STUMBO, STEVEN STUMBO, SCOTT STUMBO, UNKNOWN STUMBO\nNo. COA00-408\n(Filed 15 May 2001)\n1. Child Abuse and Neglect\u2014 investigation \u2014 private interview with children \u2014 Fourth Amendment rights\nThere was no search or seizure implicating respondents\u2019 Fourth Amendment rights where a child protective services investigator drove to respondents\u2019 house to investigate a report that a naked two-year-old child was unsupervised in respondents\u2019 driveway, the investigator indicated to a woman who emerged from the house that she needed to speak with the children in the household privately, the woman\u2019s husband was called and came home from work, the investigator remained outside and observed the children but did not ask them any questions, she testified that she asked to speak privately with the children at least three times during the incident but was refused and that she never asked to enter the house, DSS later filed a petition to prohibit interference with or obstruction of the investigation, and the court granted the petition. The evidence in this case clearly indicates that the child protective services investigator was seeking merely to interview the children in private and did not seek to enter the home, entry into the home is not required under the statutory scheme, and the trial court\u2019s order does not authorize entry into the home. Furthermore, a private interview with a child pursuant to a child abuse or neglect investigation does not necessarily constitute a \u201cseizure\u201d warranting Fourth Amendment protection. The \u201clawful excuse\u201d provision of N.C.G.S. \u00a7 7B-303(c) does not permit parents to interfere with or obstruct a child neglect or abuse investigation on Fourth Amendment grounds where neither a search nor a seizure is involved. N.C.G.S. \u00a7 7B-302.\n2. Child Abuse and Neglect\u2014 interference with investigation \u2014 evidence of underlying incident\nThe trial court correctly excluded evidence of whether the underlying incident constituted child neglect or abuse from a hearing to determine whether respondents obstructed or interfered with the investigation under N.C.G.S. \u00a7 7B-303.\nJudge Greene dissenting.\nAppeal by respondents from order entered 25 January 2000 by Judge Anna F. Foster in Cleveland County District Court. Heard in the Court of Appeals 13 March 2001.\nChurch, Paksoy & Wray, by John D. Church, for petitioner-appellee.\nHome School Legal Defense Association, by Michael P. Farris and Scott W. Somerville, and Stam, Fordham & Danchi, PA., by Paul B. Stam, for respondents-appellants." }, "file_name": "0375-01", "first_page_order": 405, "last_page_order": 417 }