Leaving the Children Behind
Social Services vs. families.

By Emmy Chang, NR associate editor
March 1, 2002, 9:15 a.m.

n 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.

The two-year-old 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.

Or rather, 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.

Privacy and Protocol
A 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.

Is interviewing 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]."

The Stumbos 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.

"I can guarantee you," he adds, "there isn't a parent alive who hasn't had a child naked outside."

Government? Me?
Jim 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.

"The fact 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.

"This 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."

…And I'm Here to Help
Farfourt 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.

Besides the 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."

In the Penumbra
Stumbo 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]."

The practice 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.

"She did nothing but cry," he says.

Search and Seizure?
DSS 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."

Bright's job 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.

A Double Standard
Critics 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."

Meanwhile, 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.

Both sides 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.