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.