# 4th Amendment Vs. Child Abuse **URL:** \ **Category:** Great Debates\ **Created:** [May 17, 2001, 12:30pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711 "2001-05-17T12:30:26Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![Freedom](https://avatars.discourse-cdn.com/v4/letter/f/bc8723/32.png) [@Freedom](https://boards.straightdope.com/u/Freedom)\ **Post date:** [May 17, 2001, 12:30pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/1 "2001-05-17T12:30:26Z")
To start off with, my source is World Net Daily. I like WND, but I have seen them occasionaly overstate their case. So if someone has another source that debunks the facts in their article, please feel free to fire away. Here is the story: [http://www.worldnetdaily.com/news/article.asp?ARTICLE\_ID=22006](http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22006) A couple has their two year old child streak naked across their front yard. They grab him and bring him back inside. Someone calls the police. A social worker comes out and demands to inspect the house and access to the children without the parents present. They tell the social worker to go jump off a bridge. (well, they were probably nicer than that) Then they end up in court. Where… The state rules that there are no 4th Amendment protections because the STATE social worker is not considered BOUND by the the Constitution. WTF??? [ARTICLE](http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=22854) > [@](#): > > During the trial court proceedings, Cleveland County District Judge Anna Foster excluded testimony regarding the circumstances of the toddler’s “streaking” episode as irrelevant, saying the case centered on the parents’ interference with an investigation.\*\* Foster ultimately ruled that the social worker was not a “state actor,” thus eliminating applicability of the Fourth Amendment.\*\* So, what’s the deal? Are there any dopers out there who think we should toss the Bill of Rights out the window when it comes to the children? Is this destined to be overturned in the State Supreme Court? The USSC? ---
**Author:** ![Typo\_Negative](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/typo_negative/32/484_2.png) [@Typo\_Negative](https://boards.straightdope.com/u/Typo_Negative)\ **Post date:** [May 17, 2001, 12:59pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/2 "2001-05-17T12:59:37Z")
> [@](#): > > The Fourth Amendment is intended to protect citizens from government actions, not those committed by individuals acting on their own authority What a load of crap. The social worker _is_ an agent of the state. And the State will act on that agents recommendation. Why is someone complaining that a 2 year old ran across the yard naked??? This is cause for a visit by Social Services??? I got a three year old nephew who strips naked every time you turn your back on him. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 17, 2001, 10:15pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/3 "2001-05-17T22:15:11Z")
From 5/17 World Net Daily, > [@](#): > > The North Carolina Court of Appeals ruled in a split decision that the parents of a 2-year-old “streaker” should have complied with a social worker’s demands to enter the home and privately interview all their children. > > The ruling was announced yesterday by the Home School Legal Defense Association, which represents the parents. The appeals court issued its 2-1 decision Tuesday afternoon, saying the social worker’s demands did not constitute a “search” in the context of the Fourth Amendment, which says in its entirety: > > “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” see [http://www.wnd.com/news/article.asp?ARTICLE\_ID=22854](http://www.wnd.com/news/article.asp?ARTICLE_ID=22854) Regarding justification, the article said: > [@](#): > > Foster admitted in the lower-court proceedings that probable cause did not exist in the Stumbo case, but the social worker was not a state actor, so the Fourth Amendment did not apply, the judge ruled. > > The appeals court came to the same conclusion, but used a different tactic. Without addressing whether or not the social worker conducting the child-abuse investigation was a state actor, the court ruled that the investigation was not a “search” for Fourth Amendment purposes. > … > Because there was a dissenting opinion in the Stumbo appeal, the family is granted an automatic appeal to the state Supreme Court. I personally am appalled. It seems clear that this was a search by a government employee, and a potential seizure of a child as well. In practice, I can remember being warned 30 years ago, that if my toddler ran outside naked, a child protection worker might take extreme action, including removing her from the home. I wonder how common this sort of thing is. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [May 17, 2001, 10:25pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/4 "2001-05-17T22:25:22Z")
Who HASN’T streaked as a two year old? Hell, my sister used to piss all over the patio! I also remember skinny dipping when I was three with my cousins. ---
**Author:** ![capacitor](https://avatars.discourse-cdn.com/v4/letter/c/e47774/32.png) [@capacitor](https://boards.straightdope.com/u/capacitor)\ **Post date:** [May 17, 2001, 10:54pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/5 "2001-05-17T22:54:57Z")
The court is right. The social worker or child case worker has more search powers than police. It is necessary because they have to assess the house and the people in it and present what they discovered to the court. Lack of search authorization resulted in tragedies involving children and spouses across the country. In response, many states revamp the rules, practically demanding that the child abuse social workers search the premises more thoroughly, with police presence of necessary. Unfortunate as it may seem un relation to the fourth amendment, too many children are being abused severely, necessitating the state and local legislatures to grant extra search powers to social workers. There are also laws against child nudity in force in some of these states, some of which are very strict, to the extent that a child is not to be seen naked udner any circumstances. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 17, 2001, 11:02pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/6 "2001-05-17T23:02:47Z")
Rule of thumb: Never believe anything you hear on Rush Limbaugh, see on the 700 Club, or read on WorldNetDaily. From the actual opinion: > [@](#): > > Respondents’ contentions that an investigation pursuant to G.S. § 7B-302 requires entry into the home, that Lowery did, in fact, seek entry into the home in this case, and that the trialcourt’s order “was a judicial warrant for a search of the Stumbo home” are without merit. Respondents have attempted to portray this case as involving a direct conflict between respondents’ right to refuse entry into their home, and the statutory investigation mandated by G.S. § 7B-302. For example, in their brief to this Court, respondents contend that Lowery [the social worker] testified at the hearing that when she arrived at respondents’ home she asked “to be allowed to enter the home and to interview each of the children privately.” Further, counsel for respondents argued to the trial court at the hearing that DSS, through Lowery, sought to “enter the home without probable cause.” To the contrary, Lowery testified that she never asked to enter the home, and there is no testimony in the transcript or other evidence in the record to contradict this assertion. Furthermore, Lowery testified that when she spoke with Mr. Stumbo on the phone, “[she] told him that [she] needed to talk with everybody in the household” and that she has been trained to “make a home visit, talk with the parents privately and talk with the children privately in order to conduct the investigation.” Thus, the evidence clearly indicates that Lowery was seeking merely to interview the children in private, and did not at any time seek to enter the home. [_In re Stumbo_](http://www.aoc.state.nc.us/www/public/coa/opinions/2001/000408-1.htm), NO. COA00-408 (N.C. Ct. App. May 15, 2001). **Capacitor** : There is no such thing as a “social worker” exception to the Fourth Amendment prohibition on warrantless searches. ---
**Author:** ![beagledave](https://avatars.discourse-cdn.com/v4/letter/b/6de8d8/32.png) [@beagledave](https://boards.straightdope.com/u/beagledave)\ **Post date:** [May 17, 2001, 11:11pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/7 "2001-05-17T23:11:50Z")
Ditto to minty… doing a Google search on Judge Anna Foster led to [http://www.libertynews.org/article.php?sid=49](http://www.libertynews.org/article.php?sid=49) which proudly links to the WorldNet bit, with a bit of black helicopter analysis thrown in ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 17, 2001, 11:44pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/8 "2001-05-17T23:44:11Z")
There’s nothing like an original source. The dissent included: > [@](#): > > ## . Section 7B-302 mandates the Director of the Department of Social Services (the Director) to make a “prompt and thorough investigation” of all reports of abuse, neglect, and dependency. N.C.G.S. § 7B-302(a) (1999). Although the statute does not define what is required to accomplish a “thorough investigation,” it does provide the “investigation . . . shall include a visit to the place where the juvenile resides.” Id. The statute also provides the Director is to “have personal access to the juvenile” and interview the child in private. N.C.G.S. § 7B-303(b) (1999). The North Carolina Administrative Code (Code) sets out, in some detail, therequirements for a “thorough” investigation. 10 NCAC 41I .0305 (June 2000). The Code mandates the Director, among other things, assess “whether the specific environment in which the child or children is found meets the child’s or children’s need for care and protection[,]” make a “visit to the place where the child or children reside,” and interview the “victim child.” 10 NCAC 41I .0305 (a),(d) & (e) (June 2000). Thus, the Director is required to make an inspection of the residence in which the child (the subject of the child abuse/neglect report) resides, necessitating an entry into the home, and to speak personally with the reported victim child. > > In this case, the trial court entered an order directing respondents not to obstruct or interfere with any investigation by DSS “as required by 7B-302.” (See footnote 6) As this investigation mandated DSS inspect the residence in which the child lived to interview Joanie Stumbo, the trial court was required, prior to issuing a section 7B-303© order, to make a finding there existed reasonable grounds for suspecting the respondents had abused/neglected Joanie Stumbo. If I understand this, the dissenting judge said the statute required entry into the home, which he found could only be done after a finding of reasonable grounds. Since the trial court had ordered full compliance with the law, which included entering the home, that ruling violated the 4th amendment. I.e., the trial court was wrong, even though the social worker was right. The majority sidestepped the question of whehter a finding of reasonable grounds was needed before the SW demanded entry to the home, by finding that in this case, the SW had made no specific request had been made to enter the home. Minty – please correct me if I’ve got this wrong. ---
**Author:** ![Freedom](https://avatars.discourse-cdn.com/v4/letter/f/bc8723/32.png) [@Freedom](https://boards.straightdope.com/u/Freedom)\ **Post date:** [May 18, 2001, 12:07am UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/9 "2001-05-18T00:07:51Z")
From Minty’s quote: > [@](#): > > To the contrary, Lowery testified that she never asked to enter the home, and there is no testimony in the transcript or other evidence in the record to contradict this assertion. Furthermore, Lowery testified that when she spoke with Mr. Stumbo on the phone, “[she] told him that [she] needed to talk with everybody in the household” and that she has been trained to **"make a home visit, talk with the parents privately and talk with the children privately** in order to conduct the investigation." I gotta tell ya… **NEEDING** to make a home visit and speak with every person alone(mandatory?), even the underage kids, smacks of a a search. She speaks with the authority of the state, so she needs to be bound by the Constitution. **Capacitor** While I disagree with you strongly, don’t you think the proper way to carve out an exception to the Constitution would be through an Amendment? Or do you think we it is ok to sort of fudge it when something important comes along? ---
**Author:** ![Drastic](https://avatars.discourse-cdn.com/v4/letter/d/f9ae1b/32.png) [@Drastic](https://boards.straightdope.com/u/Drastic)\ **Post date:** [May 18, 2001, 5:21am UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/10 "2001-05-18T05:21:24Z")
But it’s [whine] for the childreeeen! [/whine] So this social worker, employed by the state but who is not an actor of the state, needed to talk to the parents and the children privately via a home visit, but doing that doesn’t constitute a need to enter the home or interview them privately. Riiiight. War is peace. Slavery is freedom. We have always been at war with East Asia. We have always been at peace with Eurasia. You are learning, Winston. Needless to say, I disagree with the court’s ruling in this case. And I have to question the general intelligence and brain cell count of the neighbors instigating the thing. “Oh my God! Ethel! Their child is NAKED! What kind of sick monsters ever have a naked toddler! Toddlers are NEVER naked! Toddlers are extremely self-conscious about their modesty! This must mean ABUSE! Call the cops!” That said, I feel for social workers, who are stuck behind very heavy sharp rocks and very hard unyielding places. Every time a real tragedy slips through the cracks, they catch holy hell; the pendulum swings and every time they overstep their bounds to try to avoid real tragedies slipping through, they catch holy hell again. I don’t envy them the job, that’s for sure. But blithely chipping away and outright ignoring the foundation of our country is not the answer to anything. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 18, 2001, 3:18pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/11 "2001-05-18T15:18:45Z")
The ‘unreasonable search’ issue here is a red herring; y’all shoulda seen that by now. The evidence adduced at the hearing doesn’t support the assertion that the trial court’s order requires a ‘search’; the majority of the Appellate Court understood the difference between what the regulation promulgated by the administration would like to have happen and what the law passed by the legislature requires. Given that the Court’s order only referred to the statute, and that the social worker’s unrefuted testimony establishes that going inside the home wasn’t asked or required, the ‘search’ issue is a dog that won’t hunt. The focus on this issue is troubling, for it masks the more unfortunate decision in the case: **the determination by the Court and the Appellate Court that the forced interview of the children would not be a _seizure_.** The majority opinion deals with this issue by asserting that the cases cited by the appellants do not compell such a determination, but then equates that with a determination that it is NOT a seizure. The majority NEVER addresses the requirements of a ‘seizure’, let alone whether the interviews requested would meet the requirements of a seizure. The majority then blithely asserts that, since no seizure is involved, no justification exists for denying the requested interviews. The dissent, at least, manages a stab at the concept that holding onto the kids against the will of the parents is a seizure under the 14th Amendment (applying the concepts of the 4th Amendment - how I wish everyone, including courts, would state this correctly). But even the dissent manages only a weak effort (perhaps because it seems so **obvious** ). The dissent also seems to have been caught by the bait of the ‘search’ issue, and devotes much more of its analysis to the concept that the statute requires a ‘search’ (falling in the process hopelessly mired in a failure to distinguish statute from regulation promulgated thereunder, not to mention ignoring the evidence). Put plainly, the social worker, based on nothing more than a report that a child was seen outside the home naked, attempted to interview the children, and was refused. Her department then initiated a court hearing to obtain an order requiring the parents make the juveniles available for such interviews, based on no additional evidence of ‘neglect or abuse’ than the original report; indeed the testimony of the social worker from her visit in no way supports the assertion of ‘neglect or abuse’. The Court, with no threshhold showing other than that the parents refused the statutorily required interviews, ordered the parents to allow the interviews. This constitutes a ‘seizure’, for which neither probable cause nor any other reasonableness has been established. The decision is an erroneous application of Constitutional Law. With luck, the state’s Supreme Court will rectify the issue. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 18, 2001, 4:50pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/12 "2001-05-18T16:50:56Z")
> [@](#): > > \*Originally posted by minty green \ ***Capacitor** : There is no such thing as a “social worker” exception to the Fourth Amendment prohibition on warrantless searches. Of course, Minty is correct in theory… However, it would appear that social workers in North Carolina have assumed the right to make home visits without a warrant. There are good reasons to permit this practice, because it involves the safety of endangered children. Judge Foster and the appellate court didn’t want to change the usual practice, so they each found a reason to maintain the status quo. The effect of their decisions was to uphold what amounts to a “social worker exception to the Fourth Amendment.” ---
**Author:** ![jane\_says](https://avatars.discourse-cdn.com/v4/letter/j/47e85d/32.png) [@jane\_says](https://boards.straightdope.com/u/jane_says)\ **Post date:** [May 19, 2001, 2:09am UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/13 "2001-05-19T02:09:54Z")
All I can say is that it’s a good thing I don’t live in that neighborhood. My 3- and 4-year olds are naked more often than not, right out in public, in their pool in the backyard. Since the weather has been so nice lately, nearly every evening this week they’ve requested to be “squirted” (with the garden hose). People who see filth in kids’ nakedness are the ones with the problem, not the nakey kids or their parents. What about nudist colonies? Is there an age requirement, or do they staff their own social workers? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 19, 2001, 2:12am UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/14 "2001-05-19T02:12:15Z")
> [@](#): > > \*Originally posted by december \* > The majority sidestepped the question of whehter a finding of reasonable grounds was needed before the SW demanded entry to the home, by finding that in this case, the SW had made no specific request had been made to enter the home. > > Minty – please correct me if I’ve got this wrong. \*\* You’ve pretty much got it, although I wouldn’t say that the court “sidestepped” the issue. Courts should not decide issues that are not presented by the case in front of them. That’s a basic premise of judicial restraint, and anything they do say about an issue not in the case is of no precedential value. Since there was neither an entry or a request for an entry in this case, the court didn’t decide whether that would violate the fourth amendment. Of course, state actors violate the fourth amendment prohibition on warrantless searches every day. But just because they (too often) get away with it does not mean they’re acting under some sort of exception to the warrant rule. Unless a court blesses such searches, I would not call them “exceptions” to the warrant rule. The court here did not decide there is a “social worker exception,” so I would not be so quick to claim that one exists. Incidentally, I agree wholeheartedly with what **DS Young** has to say about the court’s ruling on the “seizure” aspect of this case. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [May 19, 2001, 12:56pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/15 "2001-05-19T12:56:53Z")
> [@](#): > > However, it would appear that social workers in North Carolina have assumed the right to make home visits without a warrant. There are good reasons to permit this practice, because it involves the safety of endangered children. > > Judge Foster and the appellate court didn’t want to change the usual practice, so they each found a reason to maintain the status quo. The effect of their decisions was to uphold what amounts to a “social worker exception to the Fourth Amendment.” Someone correct me if I’m wrong, but doesn’t the warrant only come into play if consent isn’t given? If a social worker makes a home visit, and is given permisssion to enter the home and speak to the children , it doesn’t really make sense to say they’ve “assumed” a right.The reason I’m bringing this up is because I’ve worked as a child-protective worker (although in another state). In the hundreds of cases I dealt with, only one family would not allow me into their home.It was very rare for people not to allow us in. (I never could figure out why).We were explicitly told that the only circumstances in which we could enter without either consent or a warrant were those in which the police could (and in fact, we would have had to have police assistance in those situations) and the standard for us getting a warrant was the same as the police standard.The fact that hundreds of visits were made with consent doesn’t mean either that there was a social worker exception **or** that any rights were assumed. BTW, in my state, a report that simply stated a child was naked in a backyard for a few minutes wouldn’t even have been accepted for investigation. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 19, 2001, 2:43pm UTC](https://boards.straightdope.com/t/4th-amendment-vs-child-abuse/65711/16 "2001-05-19T14:43:23Z")
> [@](#): > > \*Originally posted by doreen \* > Someone correct me if I’m wrong, but doesn’t the warrant only come into play if consent isn’t given? Yep, but this wasn’t a typical search warrant kinda case. The parents were charged with some version of interfering with a child welfare ivestigation, and they seem to have defended the charge by claiming the social worker had no right to investigate inside the house without a warrant. The defense failed because the social worker apparently never asked to be go into the home.