a September morning in 1999, while playing with her new kitten,
a little girl named Jonie Stumbo wandered naked out of her family's
Kings Mountain, N.C., home and set off a two-and-a-half-year-long
court battle over child welfare and Fourth Amendment rights.
streaker was outside only minutes before she was spotted and brought
back inside by an older brother. But someone had already put an
anonymous call through to Cleveland County's Department of Social
Services (DSS), and a few hours later, caseworker Tasha Lowery arrived
to investigate. Jonie's mother, Mary Ann, explained what had happened,
thinking it would all end there. But DSS protocol requires that
children always be questioned without their parents. The Stumbos
considered this unreasonable. They went to court.
Social Services took them to court. And when a judge ordered them
to allow the interview, the Stumbos, who belong to the Home
School Legal Defense Association, took the case first before
an appellate court and then on February 11 of this year
to the state supreme court, whose decision is now pending.
lot of people are waiting on that decision. High-profile players
have gotten involved in the case, with the National Association
of Social Workers (NASW) filing amicus for DSS, and the American
Civil Liberties Union doing likewise on behalf of the Stumbos.
the children privately really necessary? Pam Bright, an Investigative
Supervisor for Cleveland County, explains: "Families, particularly
families that abuse their children, tend to be closed systems...
If something were happening in the home to the detriment of the
child, to ask the child to share that with me in the presence of
the person who's doing it that's a lot to ask. And it would
also increase their risk [of further abuse]."
counter that more evidence should be required for a full investigation.
The caseworker, Jim Stumbo points out, was able to observe all four
children in their mother's presence. "They were obviously all
very well cared for and fed. It's just silly to pursue that.
guarantee you," he adds, "there isn't a parent alive who
hasn't had a child naked outside."
Stumbo is an architect; his wife home-schools their four children
on their ten-acre farm. Since the Stumbos are familiar with all
of their neighbors, the call, they believe, was probably put through
by a school bus driver.
that somebody called, I don't have a problem with," Stumbo
says. "I definitely don't have any problem with the fact that
they follow up all the calls they get. But I feel strongly they
have to have probable cause to conduct an investigation, beyond
just finding out what happened."
In court, attorneys for Social Services argued that the Fourth Amendment
doesn't apply to social workers, since their job is not to gather
evidence but to ensure the welfare of the child.
does not reach the threshold of a search or a seizure," DSS
attorney Leslie Farfourt told me. "[The Stumbo children] weren't
being detained at all. They were just being asked to answer questions."
I'm Here to Help
argues that Social Services cannot compel a private interview: "We
have to go before the judge and request a non-interference order."
As the NASW itself notes in amicus, however, "The sole
question at [the non-interference] hearing is whether the respondent(s)
obstructed or interfered with the investigation without a lawful
excuse." Translation: All DSS needs to prove, to force you
to submit to an interview, is that you wouldn't submit to an interview.
So DSS clearly
isn't private. A private citizen a Fuller brush salesman
or Jehovah's Witness, say doesn't become legally entitled
to talk to your kids just because you refused to let him.
Fourth Amendment itself was a response to the
writs of assistance, which were issued to enforce (civil) revenue
laws. The Supreme Court has ruled accordingly: In New Jersey
v. T.L.O. (1985), it held that the Fourth Amendment applies
to all "governmental action" by "civil as well as
criminal authorities: building inspectors, Occupational Safety and
Health Act inspectors, and even firemen."
spotlights the bizarre legal status of caseworkers. They do not
consider themselves state actors when they arrive at a house, or
when they help overburdened parents to seek aid which is,
after all, the main part of their job. But if they find evidence
of criminality, it's admissible in court. Nor does this apply only
in penal cases: As Lisa Snell of the Reason
Public Policy Institute explains, social workers will regularly
draw up a case plan mandating counseling or rehab which they then
pressure parents to follow: "They are asked to administratively
comply with the understanding that if they don't, then their child
will be taken away [by court order]."
is landing more and more caseworkers in court. Michael Farris, the
Stumbos' attorney (and chairman of the Home School Legal Defense
Association), speculates that this is partly because many home-schoolers
are simply leaving them on the doorstep. "People have learned,"
he adds, "that having a social worker in your house isn't necessarily
a friendly thing." In a few extreme but well-publicized cases,
caseworkers have been known to ask explicit or leading questions
("Did your father perform oral sex on you?") or to order
a strip search over the family's objections.
Even when social
workers behave responsibly, some parents worry that interrogation
by strangers could be frightening to children especially
young children. Jim Stumbo notes that caseworkers were permitted
to actually interview Jonie only once, on the front porch of the
Stumbo home and with her family some distance away.
nothing but cry," he says.
attorneys say there was never any question of a search in this case,
because the investigator, Tasha Lowery, never asked to enter the
family's home. Lowery confirmed this in court. But Jim Stumbo disputes
it: "She said that their standard procedure was that they would
have to talk to each child individually and check the house. And
if she did not mean come inside and inspect the interior of the
house, she certainly did not say that." And a Cleveland County
caseworker, Pam Bright, told NRO, "We are required to visit
the home of the child and to go inside, in all cases."
is far from easy. If the allegations made in a tip meet the state
definitions for abuse or neglect, North Carolina law requires that
caseworkers investigate within 72 hours. (Moreover, in some U.S.
jurisdictions definitions can be ludicrously broad. In Fairfax County,
Va., for instance, a child playing alone in the backyard is considered
to be suffering "neglect.") Every year, 25 to 40 children
die in North Carolina as a result of abuse; in 85 percent of neglect
and abuse cases, the perpetrator is a biological parent.
have called the entire machinery of child-protection agencies a
failed experiment. "If you got accused of beating your neighbor's
child," observes RPPI's Snell, "you would have due-process
rights. But when it's your own child, it goes into this completely
different system that bypasses normal standards." A possible
solution is the relatively new "One Stop" child-protection
centers, in which investigative and child-welfare functions
are streamlined. "They really work to build up the standard
of evidence," says Snell. "And they have higher success
rates with due process, but also with higher prosecution
rates for actual child abuse."
in cases like the Stumbos', it's hard not to ask: Why not simply
conduct the interview before a third party? Legitimately concerned
parents could be sure their children weren't being harassed, and
social workers could do their job. This is already done in some
cases in Cleveland County, with a familiar adult (such as a pastor)
being allowed to accompany the children provided he doesn't interfere.
in the Stumbo case claim they would have agreed to such an arrangement
but somehow, it never happened. Until the system can be reformed,
a regular policy of videotaping interviews or allowing an
independent witness might lessen liability risks. It could
even help save Social Services's funds for more important things
than two-and-a-half-year-long court battles. Children, for instance.