The 14th Amendment Equal Protection Implications of Social Services Conflicts of Interest Policy

Conflicts of interests often arise within the context of a county social services work investigating reports of abuse, neglect or dependency. Particularly in smaller communities or rural counties, it is not uncommon for a county department of social services to receive a report concerning a social services employee’s relatives or associates. More rarely, these reports involve social services employees. In such case, the integrity of an assessment or investigation will rightly be called into question if arrangements are not made to conflict the case out, thereby assuring that the assessment or investigation is impartial and not the product of favoritism toward the social services employee or their family.

NC Administrative Codes 10A NCAC 70A .0103 and 10A NCAC 70E .1105 address conflicts of interests that occur with social services agencies in the State, requiring such agencies  to “. . .refer reports of abuse, neglect, and/or dependency to another county child welfare agency when there is a [conflict of interest]. ” The following relationships can create a conflict of interest:

a. Agency (county child welfare agencies) employees,

b. An agency operated daycare facility (null after January 1, 2016),

c. A caretaker in a sole-source contract group home,

d. County Commissioner,

e. County Manager,

f. Foster parent supervised by the county,

g. Governance structure,

h. Members of the board of directors,

i. Member of the Board of Social Services, or

j. Relatives of agency employees (which includes the  great-great aunt, nephew, niece, first cousin, stepparent, stepbrother, stepsister and the spouse of each of these relatives).

Other occasions in which a conflict of interest might arise is when a report involves  (1) a child’s parent/caretaker who is an incompetent adult and who is a ward of that child welfare agency; (2) a minor in foster care who is also a parent/caretaker; or (3) when in the professional judgment of the county agency director, the agency would be perceived as having a conflict of interest. See 10A NCAC 70A .0103.

Once an agency determines a conflict of interest exists, the agency is required to “. . .immediately request assistance from a partner county child welfare agency that would address the conflict of interest]  or reduce the perception of a conflict of interest.” North Carolina Division of Social Services, Family Services Manual, Volume I: Children’s Services, Chapter VIII.1416: Child Protective Services (2016). The partner county, once confirming that a conflict of interest does exist, then becomes responsible for the case in its entirety from that point on, from conducting the assessment or investigation, to sending notices, to filing a petition and seeking non-secure if imminent risk is presented to a child subject to an assessment or investigation. North Carolina Division of Social Services, Family Services Manual, Volume I: Children’s Services, Chapter VIII.1416. III(B)(2) (2016).

At this point, one may be asking why all this is important.

The simple answer is that in child welfare cases, the integrity of child welfare investigations have 14^th Amendment Equal Protection implications that can be very real for children, let alone the parents of children who find themselves in Juvenile Court.

To illustrate this claim, it will help to use a concrete example.  Suppose a report is received regarding an employee of social services and that report was not conflicted out. Suppose further that the investigation was undertaken, the received report was substantiated, and a juvenile petition was filed. While certainly it might appear that the agency treated the report just like any other report received, a healthy skepticism is in order which should give rise to few questions: How does one know if the allegations in the petition weren’t watered down to favor the employee?  Moreover, assuming the matter makes its way past adjudication, how does one know that the recommendations made at Disposition aren’t going to be minimized so that the employee can easily sail through the court process and end the oversight of the county social services agency? The fact is that one can never know.  And if a “soft touch” (which may simply be unintentional and even unconsciously done) is being afforded a social services employee as a result of their relationship with persons at the agency, how does this square with notions that all persons are afforded the EQUAL protection of the law? While this has implications for parental rights, it is most important to focus on the implications for the child who is the subject of the report and the Juvenile Petition: is this child being adequately and appropriately protected when compared to the child’s peers?  The answer in all likelihood is that equal protection is not being afforded to the child which is a violation of the child’s constitutional rights.

It is important to note at this juncture that the conflict of interest protection afforded by the North Carolina Administrative Code is presently being eroded by arguments which would extend the holding of In re A.P., __N.C.App.__,__S.E.2d__(2017)  to conflict of interest cases (and for that see the several references to that case in this blog). As a result, counties are being asked by the State, for the sake of obtaining subject matter jurisdiction over an abused, neglected, or dependent child, to actively take a role in filing petitions in cases in which there has previously been determined to be a conflict. The State's justification is always the same:  that case law trumps policy, which surely it does in most contexts. However, counties are being asked to violate the very regulations that the State has set in place to assure that counties aren't handling cases where there is a conflict. One should reasonably ask, should the State setting policy which it expects county social services agencies to violate? Moreover, one should question the State's justifications for counties getting involved with their conflict cases. While case law may trump regulations, can it be equally said that case law trumps the 14^th Amendment Equal Protection rights of a child?


I think the answer to this is clearly in the negative (and I am sure that a cartload of plaintiff’s lawyers who have been itching to prosecute a §1983 claim would agree).