Summary
holding an anonymous call reporting an unsupervised, naked two-year-old in the driveway, without more, does not constitute neglect as intended by the legislature
Summary of this case from In re C.B.Opinion
No. 321A01
Filed 16 July 2003
Parent and Child — juvenile neglect — obstruction of investigation
The trial court's order based upon a petition filed by the Department of Social Services (DSS) under N.C.G.S. § 7B-303 charging the parents with interference with or obstruction of an investigation is reversed because the investigative mandate of N.C.G.S. § 7B-302 regarding the abuse, neglect, or dependency of a juvenile was not properly invoked when: (1) before any investigation is initiated or interference with any such investigation ensues, the proper inquiry that must be made by DSS is whether an investigation is mandated based upon the first report or multiple reports that show a pattern of neglect; (2) there was no testimony by the investigator for DSS at the hearing and no written report by DSS regarding whether the anonymous caller's allegations rose to a level sufficient to constitute a report of neglect and require the statutorily mandated investigation; and (3) the factually incomplete circumstances of the instant case of a single report by an anonymous caller of an unsupervised, naked two-year-old child in the driveway of a house does not trigger the investigative requirements of N.C.G.S. § 7B-302.
Justice MARTIN concurring.
Chief Justice LAKE and Justice BRADY joining in concurring opinion.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 143 N.C. App. 375, 547 S.E.2d 451 (2001), affirming an order entered 25 January 2000 by Judge Anna F. Foster in District Court, Cleveland County. On 8 November 2001, the Supreme Court retained respondents' notice of appeal as to a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1). Heard in the Supreme Court 11 February 2002.
John D. Church; and Yelton, Farfour, McCartney Lutz, by Leslie Farfour Jr., for petitioner-appellee Cleveland County Department of Social Services. Stam, Fordham Danchi, P.A., by Paul Stam; and Home School Legal Defense Association, by Michael P. Farris, pro hac vice; James R. Mason, pro hac vice; and Scott W. Somerville, pro hac vice, for respondent-appellants James and Mary Stumbo. Smith Helms Mulliss Moore, LLP, by Neil A. Riemann; and Seth H. Jaffe, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae. Lewis, Goldberg Ball, P.C., by Michael L. Goldberg, pro hac vice, and Michael D. Hutchinson, pro hac vice; National Association of Social Workers, by Carolyn I. Polowy, General Counsel, pro hac vice; and Council for Children, Inc., by Brett Loftis, on behalf of the National Association of Social Workers and the National Association of Social Workers, North Carolina Chapter, amici curiae. Roy Cooper, Attorney General, by R. Kirk Randleman, Assistant Attorney General, on behalf of the State of North Carolina, amicus curiae.
This case arises out of an anonymous call to an unnamed caseworker in the Cleveland County Department of Social Services (CCDSS) during which the caller alleged that he or she had seen an unsupervised two-year-old child, naked in the driveway of a house. This information, along with the location of the home, was passed along to Tasha Lowery, an investigator with the CCDSS.
Approximately two hours later, Ms. Lowery investigated the anonymous report and was rebuffed by first the mother and then the father, Mary Ann and James Stumbo, in her attempt to talk in private with the child in question and with the child's siblings. As a result, CCDSS filed a "Petition to Prohibit Interference with or Obstruction of Child Protective Services Investigation" in the District Court, Cleveland County, pursuant to N.C.G.S. § 7B-303.
On 27 September 1999, a hearing was held on the petition, at which time both parents of the child and Ms. Lowery testified. The district court judge focused her inquiry exclusively on whether the parents had interfered with the investigation and concluded that the "parents of the minor children named in the petition obstructed or interfered with this investigation by 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." The court then ordered the parents "to not obstruct, interfere with the investigation as set forth in [N.C.G.S. §] 7B-303(a) and 7B-303(b)." The parents appealed to the Court of Appeals, which, in a divided decision, affirmed the trial court. The parents filed notice of appeal with this Court based upon the dissent and also based upon a constitutional question.
This Court is called upon to resolve and clarify the scope and authority under the pertinent statutes of a department of social services (DSS) to pursue this matter based upon the facts established by the record. Throughout the litigation of this case, the parents have cloaked their argument in the context of Fourth Amendment constitutional grounds. As we have often noted, "the courts of this State will avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds." Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002). This is just such a case.
We note that the Seventh Circuit Court of Appeals recently held that it was unconstitutional on Fourth Amendment grounds when Child Welfare employees interviewed a minor child at a private school "without a warrant or court order, probable cause, consent or exigent circumstances." Doe v. Heck, 327 F.3d 492, ___ (7th Cir. 2003). In Doe v. Heck, the Bureau of Milwaukee Child Welfare received a report that a private school used corporal punishment as a form of discipline. The caseworkers went to the school and removed, without a warrant, court order, parental notification or consent, an eleven-year-old child from his classroom to interview him about the school's disciplinary procedures Id. The Seventh Circuit ultimately held that the caseworkers' investigation constituted a search because they "went to the school for the specific purpose of gathering information, an activity that most certainly constitutes a search under the Fourth Amendment." Id. at ___. The Seventh Circuit further held that the eleven-year-old was seized "within the meaning of the Fourth Amendment because no reasonable child would have believed he was free to leave." Id. at ___. Finally, the court held that the parents manifested a reasonable expectation of privacy by enrolling him in the private school and entrusting the child to school officials. Id. at ___.
In examining the record before this Court, we find no direct evidence or record of the specific contents of the anonymous call made to the CCDSS. The only evidence is Ms. Lowery's testimony at the hearing as to what an unnamed caseworker told her:
Q. Now, directing your attention to the time or near the time that this petition for non-interference was taken out, did you have occasion, Ms. Lowery, to receive a report involving any of the children that you have now identified in your petition for a non-interference order as Jonie Stumbo, . . .?
A. Yes.
Q. When was that?
A. September the 9th, 1999.
Q. What were you doing on September the 9th, 1999 when you received a report involving these children or how did you become involved with these children?
A. I was on what we call the emergency schedule, so I respond to any kind of immediate calls. I was on my way to follow up on additional report for my caseload when I was paged and given the information by a new caseworker.
Q. And what information did you receive?
A. The information I received that someone had saw a two-year old naked child in the driveway unsupervised.
Q. And did they give you a location or a general area where the child had been observed naked and unsupervised in the yard?
A. Yes.
Q. And what location were you given by the intake —
A. The indicator was on Wright Road in Kings Mountain. It was the last case on the right before you get to the subdivision on the left.
Q. The last case or the last house?
A. Last house.
The record does not reflect, nor did the testimony at the hearing provide, any further information about the facts of the incident that precipitated this litigation. There is no information either in the record or in the transcript of the hearing as to how long the child was outside unsupervised; the character of the surrounding area; or whether the child had ever been outside, naked and unsupervised before. Upon being called as a witness, James Stumbo attempted to explain what had happened, but the trial court sustained opposing counsel's objection to Mr. Stumbo's testimony. The trial court instructed Mr. Stumbo to confine his testimony to events that transpired at the time Ms. Lowery arrived at his home. All further evidence and the record before us relates solely to the effort by Ms. Lowery to interview the Stumbos' four children in private and the Stumbos' refusal to allow her to do so. Thus, without ever determining whether there was sufficient evidence of "neglect" to trigger the investigative requirements of N.C.G.S. § 7B-302, this case proceeded to a statutorily mandated investigation and legal measures to prohibit the parents' interference with an investigation by the CCDSS. The focus of all parties was on the Fourth Amendment right of the Stumbos to refuse to let Ms. Lowery in their house and/or to interview the children in private.
As explained in the case of In re Helms, "[t]he determination of neglect requires the application of the legal principles set forth in N.C. Gen. Stat. § 7A-517(21) [now N.C.G.S. § 7B-101(15)] and is therefore a conclusion of law." In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-76 (1997). Thus, it is incumbent on the Court to determine whether, based on the evidence of record, the conduct complained of, if true, constituted neglect as envisioned by the General Assembly and as interpreted by the case law of this jurisdiction.
Before reviewing applicable case law on this question, we note that not every act of negligence on the part of parents or other care givers constitutes "neglect" under the law and results in a "neglected juvenile." Such a holding would subject every misstep by a care giver to the full impact of subchapter I of chapter 7B of the North Carolina General Statutes, resulting in mandatory investigations, N.C.G.S. § 7B-302 (2001); and the potential for petitions for removal of the child or children from their family for custodial purposes, N.C.G.S. ch. 7B, subch. I, art. 5 (2001); and/or ultimate termination of parental rights, N.C.G.S. ch. 7B, subch. I, art. 11 (2001).
A "neglected juvenile" is defined in part as one "who does not receive proper care, supervision, or discipline from the juvenile's parent . . . or who lives in an environment injurious to the juvenile's welfare." N.C.G.S. § 7B-101(15) (2001). In order to adjudicate a juvenile neglected, our courts have additionally "required that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide `proper care, supervision, or discipline.'" In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (quoting former N.C.G.S. § 7A-517(21) (1989)), quoted in Helms, 127 N.C. App. at 511, 491 S.E.2d at 676.
Our review of the numerous cases where "neglect" or a "neglected juvenile" has been found shows that the conduct at issue constituted either severe or dangerous conduct or a pattern of conduct either causing injury or potentially causing injury to the juvenile. For example, in Powers, the Court of Appeals ultimately adjudicated four children neglected based on clear and convincing evidence of the mother's severe abuse of alcohol. Powers v. Powers, 130 N.C. App. 37, 502 S.E.2d 398, disc. rev. denied, 349 N.C. 530, 526 S.E.2d 180 (1998). The county DSS had received twenty-four reports about the care of the Powers children. Id. at 39, 502 S.E.2d at 400. DSS substantiated seven reports against the mother "based on her lack of supervision, alcoholism and emotional abuse or neglect." Id. During DSS' involvement, the mother was cited for driving while impaired on at least two occasions while her minor children were passengers. Id. at 39, 42, 502 S.E.2d at 399, 401. DSS reports showed that while at home the mother became substantially intoxicated and was unable to care for her younger children and that her alcohol abuse contributed to the emotional problems of her children. Id. at 43-44, 502 S.E.2d at 402.
In another child-neglect case, an elementary school principal reported to the county DSS that a five-year-old came to school with a bruise on her face and complained that her mother had been "digging into" her vagina with a washcloth during baths. In re Thompson, 64 N.C. App. 95, 96, 306 S.E.2d 792, 792 (1983). The trial court found as fact that the mother had "struck her child with a belt and, on at least three occasions while bathing the child, inserted her finger or a washcloth into the child's vagina and washed with sufficient force to cause the child to bleed." Id. at 99, 306 S.E.2d at 794. The mother was instructed to get counseling for the child, as well as for herself, both of which the mother failed to do. Id. at 100, 306 S.E.2d at 795. Although the trial court dismissed the petition for protective services, on appeal, the Court of Appeals, based on the clear and convincing evidence of neglect, vacated the order and remanded the case for further proceedings. Id. at 101, 306 S.E.2d at 796.
In the case of In re Bell, the county DSS first became involved when it received a report stating that four children under the age of six years had been left alone overnight. In re Bell, 107 N.C. App. 566, 421 S.E.2d 590, appeal dismissed, 333 N.C. 168, 426 S.E.2d 699 (1992). Ultimately, the trial court adjudicated the children in Bell neglected because DSS found that the parent did not keep adequate food in the house, that two children were not immunized against childhood diseases, and that the six-month-old baby had never been seen by a doctor. Id. at 567-68, 421 S.E.2d at 591.
In the aforementioned cases, the facts of the initial reports were "reports of neglect" as required by N.C.G.S. § 7B-302. In Powers, DSS received twenty-four reports that children were in harm's way because of their mother's alcohol abuse, and thereby served to establish a pattern of conduct injurious to the children's welfare. Powers, 130 N.C. App. at 39-47, 502 S.E.2d at 400-04. In Thompson, although DSS received only one report, the report was an allegation of a serious sexual offense. Thompson, 64 N.C. App. at 96-104, 306 S.E.2d at 792-96. Finally, in Bell, the report that four children under the age of six were left alone overnight served to establish neglect of a serious and dangerous nature. Bell, 107 N.C. App. at 567-71, 421 S.E.2d at 591-93. The factually incomplete circumstances of the instant case (the one time citing of an unsupervised, naked two-year-old in her driveway) do not approximate those factual circumstances of the cases above; thus, we must conclude, as a matter of law, that the evidence of record does not constitute a report of "neglect."
Once a county DSS receives "a report of abuse, neglect, or dependency," the investigative mandates of N.C.G.S. § 7B-302 follow:
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.
N.C.G.S. § 7B-302(a). It is this statute that sets off a chain of statutory and regulatory actions by the DSS. Once an investigation ensues, anyone who interferes with that investigation may be summoned to defend his or her actions and ultimately may be ordered by the trial court to cease from obstructing or interfering with the investigation. N.C.G.S. § 7B-303(a) (2001). Moreover, a non-interference order may be enforced by civil or criminal contempt. N.C.G.S. § 7B-303(f). In part, "interference" means "refusing to allow the director to have personal access to the juvenile, [and] refusing to allow the director to observe or interview the juvenile in private." N.C.G.S. § 7B-303(b). However, before any investigation is initiated or interference with any such investigation ensues, the proper inquiry that must be made by DSS is whether an investigation is mandated based upon the first report or multiple reports that show a pattern of neglect. Having commenced a N.C.G.S. § 7B-303 hearing, however, it is incumbent on the trial court to first ascertain whether a report of abuse, neglect, or dependency triggering the statutory mandates has been made. To the extent that the trial court in this case, as affirmed by the Court of Appeals majority concluded otherwise, that decision is in error.
One of the initial responsibilities of any department of social services is to screen a report for an ultimate determination of whether to investigate further. "Protective services shall include the . . . screening of complaints. . . ." N.C.G.S. § 7B-300 (2001). Administrative rule 10 NCAC 41I .0304, titled "Receiving Information: Initiating Prompt Investigations of Reports," governs the initial screening process and the determination of whether a statutorily mandated investigation is necessary. Though there is no regulation explaining to caseworkers how to screen initial reports, there are policies instructing them how to dismiss reports of abuse, neglect, or dependency when the factual circumstances do not warrant an investigation:
(g) The county director must have an internal two-level review, including at a minimum the worker and the worker's supervisor, prior to making a decision that information received does not constitute a report of abuse, neglect, or dependency.
(h) The county director must establish a process by which the person providing this information may obtain a review of the agency's decision not to accept the information as a report of abuse, neglect, or dependency.
10 NCAC 41I .0304(g), (h) (June 2002) (emphasis added). Thus, this regulation demonstrates that not all reports constitute "abuse, neglect, or dependency" and that the department must screen out those reports that do not merit a statutorily mandated investigation. In the case at bar, there was no testimony by Ms. Lowery at the hearing and no written report by CCDSS regarding whether the anonymous caller's allegations rose to a level sufficient to constitute a report of neglect and require the statutorily mandated investigation.
While acknowledging the extraordinary importance of protecting children from abuse, neglect, or dependency by prompt and thorough investigations, we likewise acknowledge the limits within which governmental agencies may interfere with or intervene in the parent-child relationship. "[S]o long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel v. Granville, 530 U.S. 57, 68-69, 147 L. Ed. 2d 49, 58 (2000). Thus, under the specific facts of this case, we conclude as a matter of law that the anonymous report was insufficient to invoke the extensive power and authority permitted by the General Assembly to the county departments of social services. The pointed question in this case, then, is whether an anonymous call reporting a naked child, two years of age, unsupervised in a driveway, in and of itself constitutes "a report of abuse, neglect, or dependency." We conclude that, standing alone, it does not.
The Juvenile Code is codified in chapter 7B of the North Carolina General Statutes. Subchapter I of that chapter deals with "Abuse, Neglect, Dependency." One of the stated purposes of the Juvenile Code is "[t]o provide for services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles' needs for safety, continuity, and permanence." N.C.G.S. § 7B-100(3) (2001). Further, a "neglected juvenile" is defined as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
It is obvious from this definition and the cases applying it that the circumstances constituting neglect involve serious and substantial allegations. "Neglect" is further linked with "abuse" and "dependency," thereby reinforcing the legislative conclusion that these are conditions that pose a serious threat to a juvenile's welfare. In fact, one of the specific grounds for terminating parental rights under N.C.G.S. § 7B-1111(a) is that "[t]he parent has . . . neglected the juvenile." N.C.G.S. § 7B-1111(a)(1) (2001) (emphasis added). Furthermore, under that statute, "[t]he juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101." Id.
The statutes relied upon by CCDSS — N.C.G.S. § 7B-302, "Investigation by director; access to confidential information; notification of person making the report," and N.C.G.S. § 7B-303, "Interference with investigation" — are predicated upon a report alleging abuse, neglect, dependency, or death caused by maltreatment. N.C.G.S. § 7B-301 (2001). Thus, before the mandated statutory requirement for an investigation under N.C.G.S. § 7B-302 is met, a report of neglect sufficient to meet the definition of N.C.G.S. § 7B-101(15) must be made. And, upon gathering sufficient evidence of neglect and substantiating a report of neglect, parents could ultimately have their parental rights terminated.
The conclusion we reach under these facts in no way endangers the ability of departments of social services to protect juveniles. In this case, a phone call to the parent by CCDSS (or by the anonymous caller) alerting the parent to the child's unsupervised presence outside potentially could have resolved the issue. Certainly, a call to the parents would have been a far more logical step toward protecting the child than the delay, unavoidable or otherwise, of approximately two hours to visit the home. Had there been a complaint of a pattern of lack of supervision of the child or other credible evidence that indicated a serious failing on the part of the parents to look after the child, then such conduct could rise to the level triggering the investigative mandate of N.C.G.S. § 7B-302. However, a single report of a naked, unsupervised two-year-old in the driveway of her home does not trigger the investigative requirements of N.C.G.S. § 7B-302.
By enacting chapter 7B, subchapter I, the General Assembly has provided a mandate to departments of social services in addressing reports of abuse, neglect, and dependency. As such, the departments are not precluded or prevented from inquiring or investigating reports that are of concern but do not, upon the information reported, rise to the level mandated by our laws for abuse, neglect, and dependency. Departments of social services may, and in many cases should, make inquiry but are not vested at that point with the full range of powers and duties governed by chapter 7B. Nor are the parents or care givers subject to those same powers and punitive measures. Subsequent inquiry may well prove otherwise, and the evidence may ultimately show grounds of abuse, neglect, or dependency sufficient to trigger the statutory investigative mandates. Such is not the case here.
On this record, we have a report of a circumstance that probably happens repeatedly across our state, where a toddler slips out of a house without the awareness of the parent or caregiver — no matter how conscientious or diligent the parent or care giver might be. While no one wants that to happen, such a lapse does not in and of itself constitute "neglect" under N.C.G.S. § 7B-101.
Having concluded that the investigative mandate of N.C.G.S. § 7B-302 was not properly invoked, it follows that the trial court's order based upon the petition filed pursuant to N.C.G.S. § 7B-303 charging the parents with interference with or obstruction of an investigation must fail. Therefore, the decision of the Court of Appeals affirming the order of the trial court must be reversed. Accordingly, we reverse the decision of the Court of Appeals and remand this case to that court for further remand to the District Court, Cleveland County, for entry of an order consistent with this opinion.
REVERSED AND REMANDED.