DSS workers and
law enforcement officers routinely
threaten parents with arrest or misdemeanor
charges for refusing access to their
home or children during a child abuse
investigation. They claim North Carolina
law requires them to enter your home
and that you are impeding an investigation
if you question them in any way.
They're so bold they don't even stop
at threatening to have you arrested,
they'll threaten to arrest your friends,
neighbors or anyone else that dares
question their authority.
It's common knowledge throughout the
United States that a court order of
some kind is required before government
agents can enter a private home...
It's in the Constitution. However,
North Carolina seems to think they're
excluded from the rest of the nation.
Why do they think this? Because of
a borderline unconstitutional law
that somehow managed to get passed
while nobody was paying attention.
If you ask a social worker or law
enforcement officer, they'll tell
you that this law allows them to enter
your home without any judicial oversight
or accountability whatsoever. But
what does the law really say? What
exactly is interference with an investigation?
When asserting that a parent is interfering
with an investigation, the government
agent relies on G.S. 7B-303, which
states in pertinent part:
For purposes of this section, obstruction
of or interference with an investigation
means refusing to disclose the whereabouts
of the juvenile, refusing to allow
the director to have personal access
to the juvenile, refusing to allow
the director to observe or interview
the juvenile in private, refusing
to allow the director access to confidential
information and records upon request
pursuant to G.S. 7B-302, refusing
to allow the director to arrange for
an evaluation of the juvenile by a
physician or other expert.
(N.C.G.S.A. § 7B-303(b))
Interference with an investigation
relates solely to obstructing access
to the alleged victim; it does not
apply to the parents' refusal to speak
with a social worker, refusal to allow
the worker to speak with children
that are not the subject of the report
or refusal to allow the worker to
enter their home.
The appellate court has recently clarified
this law with respect to entering
a home:
Social worker's investigation . does
not require that social worker physically
enter parents' home to conduct interviews
with children.
(In re Stumbo, 2001, 143 N.C.App.
375, 547 S.E.2d 451)
Refusing to allow a DSS worker into
your home does not in any way amount
to interference with an investigation.
Both North Carolina statute and DSS
policy require the director (not just
any low-level worker) to seek a court
order if she believes the parents
are interfering with an investigation.
If any person obstructs or interferes
with an investigation required by
G.S. 7B-302, the director may file
a petition naming said person as respondent
and requesting an order directing
the respondent to cease such obstruction
or interference.
(N.C.G.S.A. § 7B-303(a))
And DSS policy states:
In this situation, the family should
be informed of the law. If necessary,
the agency director can file a petition
so that the court can order the family
to cease such obstruction.
(DSS Manual, Chap. VIII, Sec. 1414(II)(A))
In seeking an order, DSS must specifically
describe the conduct that interferes
with interviewing the child and verify
it.
The petition shall . specifically
describe the conduct alleged to constitute
obstruction of or interference with
the investigation, and shall be verified.
(N.C.G.S.A. § 7B-303(a))
The burden of proof is on DSS to show
that there is cause for an actual
investigation, that the parents have
interfered with interviewing the alleged
victim-child and that they are without
lawful excuse.
If at the hearing on the petition
the court finds by clear, cogent,
and convincing evidence that the respondent,
without lawful excuse, has obstructed
or interfered with an investigation
required by G.S. 7B-302, the court
may order the respondent to cease
such obstruction or interference.
The burden of proof shall be on the
petitioner.
(N.C.G.S.A. § 7B-303(c))
Since the appellate court has clarified
(above) that this law does not allow
a DSS worker to enter the home to
conduct her interview, parents are
not without lawful excuse in refusing
to allow a DSS worker to enter their
home.
Additionally, the parents must be
served notice of this hearing so that
they may be present and be heard.
Upon filing of the petition, the court
shall schedule a hearing to be held
not less than five days after service
of the petition and summons on the
respondent. Service of the petition
and summons and notice of hearing
shall be made as provided by the Rules
of Civil Procedure on the respondent;
the juvenile's parent, guardian, custodian,
or caretaker; and any other person
determined by the court to be a necessary
party.
(N.C.G.S.A. § 7B-303(c))
Before a crime can be committed, DSS
must first attain a court order.
An order entered pursuant to this
section is enforceable by civil or
criminal contempt as provided in Chapter
5A of the General Statutes.
(N.C.G.S.A. § 7B-303(f))
A crime hasn't occurred until the
parents disobey the court order. This
law does not give DSS unrestricted
access to enter people's homes at
will without the protection of court
oversight.
Has DSS used threats to gain entry
into your home without a court order?
File a Complaint here.
Send mail to ncweb@cpswatch.com with
questions or comments about this web
site.
Copyright © 2003 CPS Watch North Carolina
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I will not waive my
fourth amendment rights or consent
to your intrusion into my home.
Social worker's investigation . does
not require that social worker physically
enter parents' home to conduct interviews
with children.
(In re Stumbo, 2001, 143 N.C.App.
375, 547 S.E.2d 451)
A court order is required, pursuant
to the federal Constitution, North
Carolina statutes and DSS policy,
prior to entering a home.
If any person obstructs or interferes
with an investigation required by
G.S. 7B-302, the director may file
a petition naming said person as respondent
and requesting an order directing
the respondent to cease such obstruction
or interference.
(N.C.G.S.A. § 7B-303(a))
In this situation, the family should
be informed of the law. If necessary,
the agency director can file a petition
so that the court can order the family
to cease such obstruction.
(DSS Manual, Chap. VIII, Sec. 1414(II)(A))
Violations of the fourth amendment
have been held to include the use
of threats or intimidation as a means
of coercing entry.
Schneckloth v. Bustamonte - Consent
to warrantless entry must be voluntary
and not the result of duress or coercion.
Lack of intelligence, not understanding
the right not to consent, or trickery
invalidate voluntary consent.
Florida v. Bostick (S.Ct. 1991) -
"Consent" that is the product
of official intimidation or harassment
is not consent at all. Citizens do
not forfeit their constitutional rights
when they are coerced to comply with
a request that they would prefer to
refuse.
Cassady v. Tackett - Coercive or intimidating
behavior supports a reasonable belief
that compliance is compelled.
Social Workers and Law Enforcement
Officers have no immunity for knowing
violating civil rights.
Calabretta v. Floyd (9th Cir. 1999)
- Police officers and social workers
are not immune for coercing or forcing
entry into a person's home without
a search warrant.
We conclude that on appellants' first
issue, whether they were protected
by qualified immunity regarding their
coerced entry into the Calabrettas'
home, the district court was right.
They were not.
You will be held personally liable
for your actions.
Information sheet provided by CPS
Watch North Carolina (www.cpswatch.com/nc)
as a public service.
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