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.

Youthful Student Protest and Liability for Damages to Third Parties: A Student and Parent Dilemma

It has become a commonplace in the present day for the news to be dominated by examples of youth protest which sadly has become violent. This was the case in May 2017 at Evergreen State University in Portland, Oregon, where students protesting alleged inequities on the traditionally left-leaning campus expressed their wrath against Evergreen biology professor Bret Weinstein. It seems the professor, who is Caucasian, publically refused to leave campus when he and all other Caucasians were asked to leave campus by various minority activists in the spirit of honoring “A Day of Absence.”  This led to various disruptions across campus, including student scuffles with police, the University’s president being held hostage in his office, and the eventual firing of the biology professor. A much more subtle protest took place one month earlier at Linfield College, in McMinnville, Oregon, where a tumultuous student and faculty protest prevented University of Toronto professor Jordan Peterson from speaking on the Linfield College campus at considerable expense to the speaker.

While in the United States the right to free speech is highly protected and as a course of conduct enjoys a privileged position by the First Amendment , such protection is not absolute.  Justice Holmes was one of the first to articulate limits to the exercise of free speech when in Schenck v. United States when such speech was “ . . .used in such circumstances and [of] such a nature as to create a clear and present danger.” Schenck v. United States, 249 U.S. 47 (1919). However, the mere fact that speech is offensive or incites hostile feelings alone does not give rise to the State’s ability to abridge such speech. Rather, such speech may only be abridged when it is accompanied by acts or statements “. . . likely to provoke violence and disturbance of good order, even though no such eventuality be intended.” Cantwell v. Connecticut, 310 U.S. 296 (1940).  Thus, when speech is laden with fighting words, lewd references, profanity, libel, obscenity, or other elements of low speech value, there exists no First Amendment protection. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Finally, when speech has the potential to lead to serious damage to persons, places or national security, such speech may be abridged or eliminated altogether. Haig v. Agee, 453 U.S. 280 (1981).

In both of the instances of protest cited above, youthful protest has led to actual damage to persons. Thus, the conversation no longer turns on issues of the preservation of free speech but rather the liability incurred by the exercise of speech, lawful or not.

It is reasonably certain that the victims of the protests at both Evergreen State University and Linfield College have legally recognizable causes of action on the basis of wrongful discharge of employment, intentional infliction of emotional distress, tortious interference with contract, violation of civil rights, false imprisonment,  and libel and slander. Assuming that the protesters' actions can be demonstrated at trial to be the direct and proximate cause of injury, the question arises:  are young people who engage in these protests liable to third parties for their injuries? Are these protestors shielded by their youth from the various civil rights and torts claims that can be arrayed against them? And how about the parents of these protesters: Are they vicariously liable for the tortious actions of their children?

The overwhelming evidence out there is that both the protestors and their parents (if the protestor is under the age of majority) can be held liable.

In most states, legislation exists that hold parents or legal guardians liable for the willful or malicious conduct of their unemancipated children that results in property damage or injury to another person.  See Cal. Civ. Code §1714.1; N.J. Stat. Ann. 2A:53A-15; Tex. Fam. Code Ann. §§33.01-33.03. In North Carolina,  North Carolina General Statute §1-538.1 makes parents responsible for the acts of their children who “maliciously injure [any] person or destroy the real or personal property of such person.” N.C. Gen. Stat. §1-538.1 (1993).  So in the case of a youthful protestor under the age of majority who has caused a person to be wrongfully terminated or otherwise sustain damage to their person or property, the parents may very well be on the hook (at least for part of the damages). As to those that are above the age of majority, there is no shield to liability for the tortious acts one commits against a third party. If, in the course of exercising a speech act a young person engages in conduct that brings harm to another person, no matter how righteous their cause, they will be held responsible for the damages inflicted upon the other person.

All this should give one pause to consider two valuable points:

First, to the Students: know that just because you are young, you are not above the law and that your actions can and will have consequences that may complicate your financial future.

Second,  to the Parents: do you know what your child is up to on campus and will it end up causing you to pay claims that will compromise the child’s ability to financially remain in college?

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).

The Debate Over In re A.P. Continues Over Whether the Holding Applies to Conflict of Interest Cases

The battle of the interpretation of In re A.P. (see In re A.P.: A Challenge to DSS Standing to File Juvenile Petitions Where Neither Parents or Child in County But Not in Conflict of Interest Cases posted here 6/20/17)   continues on and with it, the mind numbing task of determining whether a county has standing to file a petition with regard to an abused, neglected, and/or dependent child, particularly in the case where a conflict of interest exists in the originating county.

In the past few months, there has been an abundance of opinion offered on the subject. One continuing feature of the resulting discussion has been this:

The people arguing the loudest about whether a county does or does not have standing appear to have not read the actual text of the decision very closely.

So what does In re A.P. actually say about whether a county taking a conflict of interest case for another county has subject matter jurisdiction to file a petition for the conflict of interest county?

The answer is loudly, and unequivocally . . .NOTHING.

In re A.P. did not involve a conflict of interest case. The text of the holding in In re A.P. does not mention conflicts of interest cases because that fact pattern was not before it. Notwithstanding this, there are a number of individuals out there that are positively convinced that the case does cover conflicts of interests; They would bet the farm. Moreover, their confidence takes on a sort of misplaced arrogance when you talk to them, with a didactic tone that would not be out of place in an 8^th grade English classroom.

Unfortunately, these voices, earnest as they might be, are wrong.

(Or at least until the Court of Appeals says otherwise).

Here’s why:

At its heart, In re A.P. stands for the proposition that a county only has subject matter jurisdiction to file a juvenile petition where either a child is found or where the juvenile resides. To reach this conclusion, the Court of Appeals make reference to N.C. General Statute 7B-400; 7B-401.1(a); N.C. Gen. Stat. 153A-257(a)(3); and definition of director found at N.C. General Statute 7B-101(10). A director is the individual who oversees the county social of services in the county where the juvenile is found or where the juvenile resides. A juvenile “resides” wherever the legal residence of the parent or relative with whom the child resides, or in the alternative, where the child has the same residence as that with whom the child resides, regardless of the affinity biologically or otherwise with the child. See N.C. Gen. Stat. 153A-257(a)(3).   In a non-conflict situation, only a director (or the director’s representative) in the county where the juvenile is found or where the juvenile resides has standing to file a juvenile petition. See N.C. Gen. Stat. 7B-101(10).  And it is important to note that the text of N.C. General Statute 7B-400 doesn’t use the word county, but uses the term district. So when interpreting the requirement of In re A.P. to file where the child is found or resides, it is important not to make the mistake of looking to the county but to the wider district which can involve more than one county. See N.C. Gen. Stat. 7B-400(a).

So far so good.

But when there is a conflict of interest, the definition of director changes and with it the breadth of standing to file a petition. Not only is the director the individual who oversees the county social of services in the county where the juvenile is found or where the juvenile resides but the director is also the director in the assessing county handling the case due to a conflict of interest. See N.C. Gen. Stat. 7B-400(b). Don’t believe it? Then look at the words of the text in In re A.P.:

Article 4 of the North Carolina Juvenile Code sets forth the requirements for the venue and proper parties of petitions. . .”

The Court of Appeals in In re A.P. then goes on to cite N.C. Gen Stat. 7B-400(a) and 7B-401.1.

So yes, a venue statute not only govern WHERE to file but also WHO can file. Counterintuitive? Yes. But that is the textual holding of decision.

So subject matter jurisdiction in a conflict of interest case is obtained by a director (or director’s representative) or the conflict of interest director (or the conflict of interest director’s representative) filing a juvenile petition in the district where the juvenile is found or resides.

[ENTER A CRITIC, CENTER STAGE LEFT]

“But isn’t that mere conflation,” says one person out there, and therefore can’t we ignore it?” Well, I wouldn’t think it a great strategy to challenge the judges of the court of appeals of being flip, especially when each decision is thoroughly discussed in conference before initial publication and again prior to the mandate. I think it fairly safe to say that when the panel in In re A.P. references all of Article 4 as a means of determining both venue and the proper parties to an action, it means all of Article 4.  

So what is a county in a conflict of interest case to do? If there is a genuine issue of a child not residing in the district where the child is found or resides, or where a director other than the original director or a conflict of interest director filed the petition, then the case must be dismissed: there is no subject matter jurisdiction. In this case, a county DSS could dismiss the petition, make arrangements to move the child so that the child is actually found in the District in question, and refile.

Otherwise, plow ahead. If your trial court dismisses the case for lack of subject matter, appeal it and ask for a stay.  If not, there is certainly the issue that the case may be appealed later (as the issue of subject matter can be raised at any time) and this may regrettably delay permanence for the child who is the subject of the petition.

Regardless, this issue must be resolved one way or another and the only way that will happen is for either the legislature to act to clarify the holding of In re A.P. or for the Court of Appeals to do so when the matter has been properly appealed. The latter requires a bit of courage and resolve that has thus far not shown itself.

Any takers?

The County Social Services Agency's Burden Under ICWA and N.C. Chapter 7B to Identify Indian Children.

What burden falls upon a county DSS to ascertain whether a child is an “Indian Child” as defined by the Indian Child Welfare Act?

Unfortunately, there is no overt guidance to be found in the Juvenile Code.

The closest to such guidance can be found at North Carolina General Statute 7B-200 (jurisdiction) which provides subject matter jurisdiction to the District Court “over any case involving a juvenile who is alleged to be abused, neglected, or dependent” and  “[p]roceedings to terminate parental rights.” N.C. Gen. Stat. 7B-200. This jurisdiction is subject to one essential caveat: that state conferred jurisdiction not be pre-empted by federal law, specially the Indian Child Welfare Act (ICWA) which governs Indian children, as a specific subset of juveniles who might otherwise fall within the jurisdiction of a North Carolina District Court.

According to ICWA, an Indian Child is any “unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in and Indian tribe and is the biological child of a member of an Indian tribe.”  See 25 U.S.C. §1903(4) (2006). Furthermore, an Indian tribe is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services  provided to Indians by the Secretary (of the Interior) because of their status as Indians, including any Alaskan Native village.”  See 25 U.S.C. §1903(8) (2006).

So it seems that at a minimum a social worker for a county department of social services should ask in the course of an assessment or investigation whether a child is (a) a member of federally recognized Indian tribe or (2) whether the child is eligible for membership in an Indian tribe and whether a parent is a member of an Indian tribe.

With that question answered, three points of observation should be made at this juncture. First, it very often will be the case that when a social worker asks a parent the afore-mentioned question , all manner of lore is coughed up about genealogical connections to tribes of every description. Very often the dialogue will resemble something like the following:

Q:           “Is Johnny (Susanne, Cheyenne, April, Bill, etc.) a member of federally recognized Indian  tribe or is the child is eligible for membership in an Indian tribe? Are you, the parent of    Johnny (Susanne, Cheyenne, April, Bill, etc. ) a member of an Indian tribe?”

A.            “Well, my uncle was part Cheyenne Indian and my cousin was half Blackfoot.”

Obviously, such answers not only do not answer the question but they also do not convey the necessary information to lead to a mad dash to contact an identified tribe. The social worker should make sure that the answer is properly answered and only the proper answer is recorded in dictation and reported to the court.

Second, if the respondent does answer the afore-mentioned question correctly and affirmatively, verification is warranted by contacting the identified federally recognized tribe as well as independent corroboration. As a recent North Carolina Court of Appeals case, In re L.W.S. has shown, parents are not always good historians and occasionally get the facts wrong. See In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (parent erroneously asserts that birth record identified child as Cherokee when birth records admitted into evidence fail to substantiate claim).

Third, even if a child is likely to be an Indian Child, while ICWA will likely govern the proceeding, the identified tribe has the final say on whether the child is an actual Indian Child and whether it will exercise its right to intervene. See 25 C.F.R. § 23.108(a-b) (2017). Thus, if a positive identification occurs of a suspected Indian Child, the county department of social services has a burden to contact the Indian parents, Indian custodians and the child’s tribe by certified mail. See 25 C.F.R. § 23.11(a) (2011). Only when the tribe gives an answer affirmatively , negatively or (by proxy negatively) by not answering back is the inquiry complete.

As was noted in the case of In re L.W.S., the burden of identifying whether a child is an Indian Child is part of the function of the North Carolina District Court when it factually determines whether subject matter jurisdiction exists. In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (footnote 4). The trial court will not be able to discharge its judicial responsibility if it cannot obtain the necessary facts to ascertain and find that subject matter jurisdiction exists and if so, whether that is under N.C. Gen. Chapter 7B or ICWA. While it is true that the burden of proof lies with an individual who seeks to invoke ICWA (see In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007), it nevertheless is the burden of the petitioner to provide the trial court competent factual evidence to establish subject matter jurisdiction.

Thus in summary, to answer the question as to what constitutes the burden of a county department of social services of identifying an Indian Child,  the county department of social services must ask the proper questions under ICWA, must follow up with the identified tribe, and report these facts to the court. Beyond this, the burden lies with other parties or with the trial court.