The Fourth Amendment and Social Services: What are the Limits on Assessments and Investigations?

In a recently released statement drafted by the North Carolina Attorney General’s Office, county social services agencies were advised that drug screens upon children  are considered a Fourth amendment Search and therefore require either parental permission, a court order, or  “exigent circumstances” before they could be performed.  This guidance is nothing new. In fact, the Division of Social Services of the North Carolina Department of Health and Human Services has since December of 2016 advocated this specific course of action for drug endangered children. See N.C. Div. Soc. Svcs. Family Services Manual, Vol. 1, Chapter IX (December 2016) Nonetheless, it has widely been common knowledge that some county child welfare agencies have been conducting such drug screens on children as a matter of routine practice without either parental permission or court authorization (and for the record, these are not agencies in Judicial District 22A, which includes both Iredell or Alexander counties). While the efficacy of the Attorney General’s position has yet to be tested in the courts, there is strong evidence to suggest that county social services, while not usually be considered agencies of the state in the same way as law enforcement, may nevertheless engage in behavior that implicates the Fourth Amendment. As such they are restricted in the same way as law enforcement in their ability to conduct searches and seizures in child welfare assessments and investigations. 

What are these areas?

The most notable areas are those involve searches of the home and of the person. With regard to the home, county social services agencies are prohibited from entering a home pursuant to an assessment of investigation absent (1) a reasonable belief that a juvenile is in imminent danger of death or serious physical injury; (2) the permission of the parent or person responsible for the juvenile’s care; (3) the accompaniment of a law enforcement officer who has legal authority to enter; or (4) an order from a court of competent jurisdiction. See N.C. Gen. Stat. 7B-302(h).  It should be noted that the N.C. Administrative Office of the court’s Order for non-secure custody specifically provides for the court to allow law enforcement to enter a home for the purpose of protecting a child who is at imminent risk. See AOC-J-150 at http://www.nccourts.org/Forms/Documents/483.pdf.

With regard to searches of the person, the first restriction relates to searches of a custodial parent. Absent a parent’s permission and acquiescence or a court order, a social services agency cannot compel that parent to submit to medical examination or drug screen. However, this does not mean that a parent is immune to being ordered to submit to a medical examination or drug screen before a juvenile adjudication, as the same is specifically provided for in Rule 35 of the North Carolina Rules of Civil Procedure. Likewise, following adjudication and pursuant to the dispositional orders of the juvenile court, a parent ordered to submit to random drug screens must submit to the same or face being held in civil contempt. See N.C. Gen. Stat. 7B-904; N.C. Gen Stat. 5A-21-24.

As to other searches of the person, a county department of social services has authority pursuant to an order of non-secure custody pursuant to N.C. Gen. Stat. 7B-505.1 or a dispositional order pursuant to N.C. Gen. Stat. 7B-903-7B-903.1 and 7B-906.1 to provide routine medical and dental care or treatment; emergency medical, surgical, psychiatric, psychological or mental health care or treatment and testing and evaluation in exigent circumstances. This latter provision encompasses the drug screening of children that was the subject of the N.C. Attorney General’s latest admonition. It also includes a child medical examination which may only be performed if the court makes written findings demonstrating that the county social services agency has a compelling interest in such an evaluation prior to a regular non-secure custody hearing. See N.C. Gen. Stat. 7B-505.1(b).

Thus while case law has long distinguished the work of social services agencies, whose primary task is to protect children, from the work of law enforcement, whose task is to “ferret out crime”, it is important to realize that both social workers and law enforcement officers can still be subject to Fourth Amendment scrutiny, especially when the tasks each performs become more similar in nature. North Carolina’s legislature has sought a middle ground which recognizes the importance of protecting children while at the same time recognizing a parent’s constitutional right to privacy.  The North Carolina appellate courts, excepting the infamous case of In re Stumbo, for the most part have done likewise, staying away from a full throttle imposition of a warrant requirement upon social worker investigations. See In re Stumbo,357 N.C. 279; 582 S.E.2d 255 (2003) . How long this restraint lasts depends in part upon the temperament of times. But it depends also upon every social worker and law enforcement officer to have a strict understanding of their specific roles , being religious-like in their devotion to and observance of legislative and case law restrictions which protect all children and all  parents from governmental over-reach.

Free Speech or Else: Legislatures React to Student Disruption of Invited Campus Speakers

As reported in this blog, a growing trend on college campuses has been episodic disruption by student activists of the public speech activities of third parties. Reminiscent of the tactics of ACT-UP demonstrators in the 1980’s, student demonstrators utilize a variety of tactics to silence the viewpoint of speakers with whom they disagree through the use of cell phone rings, heckling, chants, intimidation, and blocking access to the speaker, among other forms of behavior. These tactics have had a pronounced and negative effect on the dissemination of ideas and free speech on college campuses, a fact which has not escaped the attention of state legislatures. The point of departure for discussions of the protection of campus free speech has been the First Amendment itself, which largely protects the speech acts of demonstrators on the premises of educational institutions. However, First Amendment jurisprudence does not afford an absolute right to free speech when it comes to educational institutions. It has long been established that such institutions, from grade school to graduate schools,  may impose limitations on speech that are content neutral such as limits on the time, place, and manner such speech is delivered. See for example, Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) upholding school’s ability to prohibit the use of vulgar and offensive language). Moreover, the so called speech being utilized by demonstrators, which includes the use of profanity and derogatory epithets, coupled with intimidation, blocking access to fora, and occasional violence, troubles claims as to whether “shouting down” a speaker qualifies as protected speech at all.

State legislative response to this latter question has thus far been in the negative. Two states, Wisconsin and North Carolina, have led the way to placing limits on the activities of demonstrators when it comes to their disruption of invited speakers.  In Wisconsin, state legislators enacted the Campus Free Speech Act which prohibits “ protests and demonstrations that interfere with the rights of others to engage in or listen to expressive activity”; requires that campuses within the Wisconsin system be open to any speaker invited by students, faculty or staff; mandates that Wisconsin campuses be open fora; requires introduction of free speech discussions in Freshman orientation; and sets forth mandated punishment for individuals who violate the Act. See Campus Free Speech Act, Assembly Bill 299 (Wis. 2017). Following the passage of this legislation, the Wisconsin Board of Regents passed the Commitment to Academic Freedom and Freedom of Expression Policy to comply with the statutory mandate. See Similarly, the North Carolina Legislature passed the Act to Restore and Preserve Free Speech on the Campuses of the Constituent Institutions of the University of North Carolina. The North Carolina Act, like the Wisconsin Act, prohibits the disruption of speech on North Carolina’s college campuses, guarantees North Carolina’s college campuses to be open fora for free speech, and prohibits North Carolina’s institutions of higher education from requiring particular viewpoints of its students. See Session Law 2017-196 (N.C. 2017). The State of Ohio has also seen an interest in prohibiting speech suppression on its college campuses with its Campus Free Speech Act (H.B. 363, 132th Gen. Ass. (Oh. 2017).

On the whole, these developments are positive in that they safeguard the ability of ideas of invited speakers to be presented to student populations, those ideas can be constructively debated, and discourse in the realm of ideas can once more be realized, at least on a small scale, in a nation that increasingly is inclined to shut off any measure of dialogue. While certainly these laws will be tested by both the left and the right by invitations being extended to political anarchists, black, as well as white supremacists,  and others who will seek to denigrate and marginalize whole swaths of people, the reality is and must be in a country such as the United States people must be allowed to have and foster any idiotic idea they desire so long as it doesn’t lead to the physical harm of others, harm to property, or systemic disruption of public institutions. These laws restore a constitutionally required balance that has been missing for decades from our public educational institutions. It is hoped that students of persuasions will avail themselves of these laws in Wisconsin, North Carolina, and eventually Ohio, In so doing, these young people may come to learn the fact that all lawyers know, that there truly are two sides to every story and that while one may have the wisdom of Solomon, no one, except God, has a monopoly on the truth.

Continuances are a Necessary Evil In Juvenile Court

In juvenile court, often the most feared word uttered in the courtroom is that of “continuance”. There are a lot of reasons for this fear and a number of good arguments that continuances in a juvenile case may not be the best thing for children. Many would agree that at the top of the list of arguments against continuances in juvenile court, one could say that by continuing a case, the child who is the subject of the case will be have their permanence delayed. Permanence in this context means one of two things: either the child returns back to the parental home or the child continues on to a home that is not that of a parent, either to one of a relative or nonrelative kinship, or a foster care placement, in the shortest possible time. This notion of expedited juvenile permanence has a long history, dating back to the passage of the Adoption and Safe Families Act of 1997, where the specter of children languishing in the child welfare system and long term foster care--the chief enemies confronted by Congress with this legislation—were sought to be forever banished from American juvenile courts.  Since 1997, North Carolina has increasingly seen an amplification of concern about timeliness in juvenile proceedings, from the passage and imposition of a number of increasing time standards for juvenile hearings to the adoption of expedited appellate procedures by the North Carolina Court of Appeals.

While in most respects the attention to timeliness of juvenile hearings and concern for attaining permanence for children in the shortest time possible is a good thing, it should also be remembered that there is another side of the story out there that must be taken into consideration when decisions are made regarding whether to continue a case. That other side of the story is that relating to the constitutionally protected due process rights of parents in juvenile proceedings.

Due process in juvenile court takes in a great deal of territory, from issues of service and notice of the issues alleged in a juvenile petition to able to be present in court and to have the effective assistance of counsel. Not every one of these rights are absolute: they may be waived or, in the case of a parent who engages in belligerent or disruptive behavior in the courtroom, may be nullified by parental behavior inconsistent with the rights afforded by the Constitution. Nonetheless, in every consideration by a judicial official with regard to whether to grant a motion to continue in a juvenile case, both the best interest of the juvenile as well as the rights of the parent or parents need to be fully considered and appropriately weighed before a ruling is handed down.

But isn’t this obvious to everyone?

Not necessarily. There are a number of advocates in the North Carolina legal community who favor strict adherence to statutory guidelines, adopting the mantra that “if the statute says shall, then “shall” means “shall.” These advocates would most certainly be right if the courtroom reality was that DSS attorneys, GAL attorney advocates, or court appointed attorneys had witnesses who stuck with their original story, if subpoenaed records arrived in court on time, if there were no such thing as secure leave or personal illness, or if no attorney had other court obligations other than that of juvenile court.

But this is not the reality in North Carolina’s juvenile court rooms. Even though the word “shall” is used, sometimes that term must be used in the aspirational sense with due emphasis placed on the famous footnote of all economic literature, that “shall” shall mean “shall” under conditions of “ceteris paribus” or “if all other things are equal”.

Legal dogmatism has its place but divorced from the facts of everyday reality, such dogmatism places undue emphasis on form over substance. The United States has long rejected the feudal legal notion where legal form was equivalent to the notion of possession: being nine-tenths of the law. Insistence upon a “no continuance policy” is just another legal feudalism. It must be rejected in favor of the trial judge’s full consideration of the substantive as well as the procedural facts, with both the needs of the juvenile and the rights of the parents being taken into consideration.