Case Document
November 19, 2001

Appellants' Opening Brief


No. 321A01TWENTY-SEVEN-B DISTRICT

IN THE SUPREME COURT OF NORTH CAROLINA

        JAMES & MARY ANN STUMBO, individually and on behalf of SCOTT STUMBO, STEPHEN STUMBO, ALLISON STUMBO and JONIE STUMBO, minors,

        Respondents/Appellants,

              v.

        CLEVELAND COUNTY DEPARTMENT OF SOCIAL SERVICES,

        Petitioner/Appellee.

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Civil Action No. 01-P-75
(Judge Wilkes-Division II)
(DMV File No.: SA07019)



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RESPONDENTS/APPELLANTS' OPENING BRIEF
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INDEX OF CONTENTS

Index of Contents

Table of Cases and Authorities

Questions Presented

Statement of the Case

Statement of the Facts

Argument

  1. In a Case Brought Pursuant to N.C. GEN. STAT. 7B-303, Must the Government Prove That There Are Reasonable Grounds For Suspecting That a Person Has Abused or Neglected a Child?

    1. The Statutory Phrase, "Without Lawful Excuse," Requires the DSS to Make a Showing Before Expanding the Scope of an Investigation Over Parents' Objections.

    2. The "Lawful Excuse Rule" Mandates that Trial Courts Consider Evidence and to Make Findings and Conclusions Demonstrating that Sufficient Grounds Existed to Expand a Child Neglect Investigation.

    3. The "Lawful Excuse Rule" Ensures that a Neutral, Detached Magistrate Will Decide the Scope of Child Neglect Investigations, Not Social Workers.

    4. Like North Carolina, Many States Require a Showing of Neglect Before a Court May Issue a Noninterference Order.

    5. Noninterference Order is a Judicial Warrant that Must be Supported by Probable Cause

  2. Does the Investigation Mandated by N.C. GEN. STAT. 7B-302 and Implemented by N.C. ADMIN. CODE tit. 10 41I.0305 Constitute a "Search" for Constitutional Purposes, as Judge Greene Argues in His Dissent?

    1. A Search Must Be Evaluated on What Officials Did at the Time of the Incident.

    2. DSS Asserted a Right and a Duty to Enter the Stumbos' Home

    3. The Government May Not Demand Entry into a Home Without Probable Cause and a Warrant.

    4. Parents Have a Right to Oppose Unlawful Assertions of Government Authority

  3. Is the Court-Ordered Separation of a Parent and Child for the Purpose of Unrestricted Personal Interrogation of the Child a "Seizure" Within the Meaning of the Fourth Amendment to the United States Constitution?

    1. The Temporary Removal of a Child from the Custody of Their Parents is a Seizure Within the Meaning of the Fourth Amendment.

    2. Parents May Assert the Fourth Amendment Rights of their Minor Children

Conclusion

Certificate of Service

TABLE OF CASES AND AUTHORITIES

Cases

Anderson v. Creighton,
483 U.S. 635, (1987)

Calabretta v. Floyd,
189 F.3d 808 (9th Cir. 1999)

Corum v. University of North Carolina Through Bd. of Governors,
330 N.C. 761, 413 S.E.2d 276 (1992)

Ferguson v. City of Charleston,
532 U.S. 67 (2001)

Fowler v. Valencourt,
108 N.C.App. 106, 423 S.E.2d 785 (1992)

Good v. Dauphin Social Servs.,
891 F.2d 1087 (3d Cir. 1989)

Griffin v. Wisconsin,
483 U.S. 868 (1987)

H.R. v. State Dep't of Human Resources,
612 So.2d 477 (1992)

Hollingsworth v. Hill,
110 F.3d 733 (10th C, 1997)

Hurlman v. Rice,
927 F.2d 74 (2d Cir.1991)

In re Stumbo,
547 S.E.2d 451 (N.C. Ct.App. 2001)

Kia P v. McIntyre,
2 F.Supp.2d 281 (E.D.N.Y.1998)

King v. State,
246 Miss. 86, 149 So.2d 482 (1963)

Malik v. Arapahoe County Dept. of Social Services,
191 F.3d 1306 (10th C. 1999)

Moore v. Evans,
124 N.C.App. 35, 476 S.E.2d 415 (1996)

New Jersey v. T.L.O.,
469 U.S. 325 (1985)

People v. Young,
100 Ill.App.2d 20, 241 N.E.2d 587 (1968)

Ram v. Rubin,
118 F.3d 1306 (9th C. 1997)

Renn v. Garrison,
845 F.Supp. 1127 (1994)

Roberts v. Swain,
126 N.C.App. 712, 487 S.E.2d 760 (1997)

Robinson v. Via,
821 F.2d 913 (2d Cir. 1987)

Rogers v. Pendleton,
249 F.3d 279 (4th Cir. 2001)

Santosky v. Kramer,
455 U.S. 745 (1982)

State v. Buckner,
351 N.C. 401, 527 S.E. 2d 307 (2000)

State v. Carter,
322 N.C. 709, 370 S.E.2d 553 (1988)

State v. Cesero,
146 Conn. 375, 151 A.2d 338 (1959)

State v. Covington,
273 N.C. 690, 161 S.E.2d 140 (1968)

State v. Duncan,
270 N.C. 241, 154 S.E. 2d 53 (1967)

State v. Filor,
13 P.3d 926 (Kan. App. 2000)

State v. Gaines,
483 S.E.2d 396 (N.C. 1997)

State v. Hill,
132 N.C. App. 209, 510 S.E. 2d 413 (1999)

State v. Isleib,
80 N.C. App. 599, 343 S.E. 2d 234 (1986)

State v. Mooring,
115 N.C. 709, 20 S.E. 182 (1894)

State v. Robinson,
248 N.C. 282, 103 S.E.2d 376 (1958)

State v. Smith,
346 N.C. 794, 488 S.E.2d 210 (1997)

State v. Sparrow,
276 N.C. 499, 173 S.E.2d 897 (1970)

Stump v. Sparkman,
435 U.S. 349 (1978)

Tenenbaum v. Williams,
193 F.3d 581 (2nd Cir. 1999)

Thornhill v. Alabama,
310 U.S. 88 (1944)

Troxel v. Granville,
530 U.S. 57 (2000)

United States v. Mendenhall,
446 U.S. 544 (1980)

Van Emrik v. Chemung County Dep't of Social Services,
911 F.2d 863 (2nd Cir. 1990)

Wallis v. Spencer,
202 F.3d 1126 (9th Cir. 2000) 37,

Wyman v. James,
400 U.S. 309 (1971)

Yuan v. Rivera,
48 F.Supp.2d 335 (S.D.N.Y.1999)

Statutes

16 Del. Code Ann. 910(a) and (b)

325 Ill. Comp. Stat. 5/7.5

55 Pa. Code 3490.73 (2001)

Ala. Code 26-14-7(c)

Ariz. Rev. Stat. 8-803(C)

Ark. Code Ann. 12-12-510(b)

Colo. Rev. Stat. 19-3-308(3)(b)

Fla. Stat. Ch. 39.301(10)

Ind. Code 31-33-8-7(c)

Iowa Code 232.71B.5

Ky. Rev. Stat. 620.040(5)(a)

La. Child. Code 613(A)

Minn. Stat. 626.556(10)(f)

N.C. ADMIN. CODE tit. 10 41I.0305

N.C. GEN. STAT. 7B-302

N.C. GEN. STAT. 7B-303

N.C. GEN. STAT. 7B-307(a)

Okla. Stat. tit. 10, 7106(C)(2) (2001)

Or. Admin. R. 413-020-0430(8)(b)(L) (2001)

Or. Admin. R. 413-020-0430(8)(b)(L)(i) (2001)

R.I. Gen. Laws 40-11-7(c) (2000)

S.C. Code Ann. 20-7-490(14) (2001)

S.C. Code Ann. 20-7-650(D) (2001)

Tenn. Code Ann. 37-1-406(e) (2001)

Tex. Fam. Code 261.303(b) (2001)

Utah Code Ann. 62A-4a-409(8) (2001)

Wis. Stat. 48.981(3)(c)3 (2001)

Wyo. Stat. Ann. 14-3-204(a)(iii) (2001)

Other Authorities

Wayne R. LaFave & Jerold H. Israel,
Criminal Procedure 9.2 at 732-33 and nn. 26-28 (1984)

692 Black's Law Dictionary (6th Ed. 1990)

Colo. Rev. Stat. 19-3-308(3)(b)

Cooley, Constitutional Limitations
364 (6th Ed. 1890)

No. 321A01TWENTY-SEVEN-B DISTRICT

IN THE SUPREME COURT OF NORTH CAROLINA

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        JAMES & MARY ANN STUMBO, individually and on behalf of SCOTT STUMBO, STEPHEN STUMBO, ALLISON STUMBO and JONIE STUMBO, minors,

        Respondents/Appellants,

              v.

        CLEVELAND COUNTY DEPARTMENT OF SOCIAL SERVICES,

        Petitioner/Appellee.

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From NC Court of Appeals
No. COA00-408
From Cleveland
No. 99J158




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QUESTIONS PRESENTED

I. In a case brought pursuant to N.C. GEN. STAT. 7B-303, must the government prove that that there are reasonable grounds for suspecting that a person has abused or neglected a child?

II. Does the investigation mandated by N.C. GEN. STAT. 7B-302 and implemented by N.C. ADMIN. CODE tit. 10 41I.0305 constitute a "search" for constitutional purposes, as Judge Greene argues in his dissent?

III. Is the court-ordered separation of a parent and child for the purpose of unrestricted personal interrogation of the child a "seizure" within the meaning of the Fourth Amendment to the United States Constitution?

STATEMENT OF THE CASE

On September 15, 1999, the Cleveland County District Court received a petition from the Cleveland County Department of Social Services ("DSS") for an order prohibiting interference with a child neglect investigation. (R p. 3) At the hearing on September 28, 1999, the court found that James and Mary Stumbo had violated N.C. GEN. STAT. 7B-303 by interfering with a child neglect investigation. The trial court sustained objections to the admission of evidence that would have supported the Stumbos' assertions that they had a lawful excuse for refusing to allow the DSS to expand the scope of the investigation, including a claim that the search of their home and seizure of their children would violate the Fourth Amendment of the United States Constitution. The court made no finding that the noninterference order was supported by probable cause or any other standard to believe that abuse or neglect had occurred.

More than one hundred and twenty days later, on January 21, 2000, the district court finally ordered the Stumbos to permit DSS "to conduct an investigation as required by N.C. GEN. STAT. 7B-302 and that Mr. and Stumbo [sic] are to not obstruct, interfere with the investigation as set forth in 7B-303(a) and 7B-303(b)." (R p. 23). In open court on Jan. 21, 2000, the Stumbos moved the court for a stay of this order, pending appeal, which it denied.

The Stumbos filed a written notice of appeal on February 3, 2000, and petitioned the Court of Appeals for a temporary stay and a writ of supersedeas, pending appeal. The Court of Appeals granted the temporary stay on February 4, 2000 and issued the writ of supersedeas on February 25, 2000.

On May 15, 2001, the Court of Appeals issued a divided opinion in this case. Two members of the court concluded that no showing of neglect was required and that no search or seizure was involved. In re Stumbo, 547 S.E.2d 451, 454 (N.C. Ct.App. 2001). Judge Greene dissented, arguing that (1) social workers must demonstrate some reason to believe abuse or neglect has occurred before a court may issue a noninterference order; (2) the expansion of the child abuse investigation sought by DSS at the Stumbos' home is a "search," for constitutional purposes; and (3) a coercive interview of a child outside the presence of the parents and over the objections of the parents is a "seizure." This Court accepted these three questions for review.

STATEMENT OF THE FACTS

Jim and Mary Anne Stumbo have four children. In August, 1999, they moved from Hickory to Kings Mountain. Their new house is on Wrights Road, a dead-end, one-lane road (T pp. 12, 27, 40, 46). Though the area is not wooded, one can only see the door of one other house from the Stumbos' driveway. (T p. 27).

Shortly after sunrise on September 9, 1999, Jonie, the Stumbos' youngest daughter, came downstairs. Mr. Stumbo took two-year-old Jonie into the bathroom (as he does most mornings) and then sent her back upstairs to get dressed for the day. Mr. Stumbo went back into his own room to get dressed. (T p. 40).

Jonie got distracted on her way up the stairs, however. The family had only been in their new house for three weeks (T p. 40). Jonie ran out the door after the family's kitten (T p. 16-17, 40), but her big brother Scott spotted her and brought her right back in. (T p. 40).

At or about the same time, the Cleveland County Department of Social Services received an allegation that there was a naked female child in the Stumbos' driveway. (T p. 11). DSS worker Tasha Lowery arrived at the scene within two hours. She spoke first to Mrs. Stumbo, who promptly called her husband on a cordless phone. (T pp. 15-16). Mr. Stumbo explained how Jonie had chased the kitten out the door (T p. 16-17), but the DSS worker informed Mr. Stumbo that she still needed to "talk with everybody in the household." (T p. 17). At that point, Mr. Stumbo told the DSS worker that he would come home from work to talk with her. (T p. 17). Mrs. Stumbo went inside. (T p. 19).

Tasha Lowery told the Stumbos she needed (1) "access" to complete her report, (2) "access to the children," and (3) any other means to allow her to fully investigate the allegation. (T p. 22). She testified that she must "make a home visit, talk with the parents privately and talk with the children privately" each time she conducts an investigation. (T pp. 14-15). The Stumbos argued that a "visit" did not require her to enter the home, but DSS expressly disagreed with that interpretation of the law. (T p. 31).

Mr. Stumbo soon arrived from work and spoke with the DSS worker, who was still standing outside. (T p. 42). Mr. Stumbo attempted to explain how Jonie had gotten out the door. (T pp. 42-43). Mr. Stumbo assumed the investigation would be complete as soon as the DSS worker found out what happened, saw that the children were all well taken care of, were clothed and dressed and fed. (T p. 43).

He was wrong. Ms. Lowery told Mr. Stumbo that "Cleveland County protocol" required her to interview the children privately and inspect the house. (T p. 43). The Stumbos did not object to allowing DSS to interview their children in their presence (T p. 59), but they did expressly object to a search of their home and separation from their children. (T p. 59). Mr. Stumbo said he believed the government needed probable cause to invade "the privacy of my home and the privacy of my children." (T p. 45).

DSS filed the petition in this case as a result. (Petition, R p. 3). The petition alleged:

On September 9, 1999 the Cleveland County Department of Social Services received a report alleging neglect of the above named children. Due to the nature of the allegations an immediate response was made by Social Worker Tasha Lowery. After explaining the nature of the allegations to the parents the social worker requested to interview the children in private. The parents contacted their attorney while the social worker was at the door. The social worker explained to the attorney the nature of the complaint. According to the parents their attorney advised them not to allow a private interview with the children nor access their home.

ARGUMENT

I. In a Case Brought Pursuant to N.C. GEN. STAT. 7B-303, Must the Government Prove That There Are Reasonable Grounds For Suspecting That a Person Has Abused or Neglected a Child?

Assignment of Error No. 1

(R p. 30)

The statutory phrase "without lawful excuse," in N.C. GEN. STAT. 7B-303(c) (the "noninterference statute"), requires social workers to demonstrate more than simply that a parent has refused to comply with a social worker's demands. The statute does not give social workers carte blanche. As the dissent below would have held, there must be some showing that abuse or neglect has occurred before a court may issue a noninterference order under N.C. GEN. STAT. 7B-303(c). In re Stumbo, 547 S.E. 2d at 457-58 (Greene, J., dissenting).

Where a social worker's demands trench on Fourth Amendment rights, mere suspicion based on a single anonymous report is not enough; the Fourth Amendment requires probable cause to believe that neglect has occurred. Furthermore, North Carolina law requires the trial court to consider evidence tending to demonstrate a "lawful excuse" for declining to allow social workers to enter the home or interview children outside the presence of their parents. A lawful excuse could range from a constitutional right, like the Fourth Amendment right to be free from unreasonable, warrantless searches and seizures, to a common-sense conclusion that further investigation is not warranted under the circumstances. DSS made no showing of probable cause to justify expanding the scope of its investigation to include a search of the Stumbos' home or the custodial interrogation of their children. By refusing to consider evidence regarding the Stumbos' assertion of a lawful excuse, the trial court committed reversible error.

After the Stumbos declined to allow the social worker to enter their home and to interview their children privately, DSS filed a petition in juvenile court alleging only that the Stumbos were "obstructing or interfering with a child protective services investigation. . . ." Juvenile Summons and Notice of Hearing, R p. 3, 2. In its petition, DSS alleged nothing about the circumstances leading to the commencement of the investigation; the petition merely alleged that DSS had received a report alleging neglect, and that the Stumbos would not allow the social worker to conduct a private interview with their children and would not allow the social worker access to their home. Id. at 3.

The Stumbos argued to the trial court that under the noninterference statute DSS bore the burden of proving by clear, cogent and convincing evidence that any refusal to cooperate with DSS's demands was without lawful excuse. (T p. 57; Respondents' Brief Opposing Petition for Noninterference Order, R p. 12). At the hearing on the petition, DSS objected to the admission of the Stumbos' evidence about the relevant circumstances and events relating to whether they had a "lawful excuse." (T pp. 34-35, 40-42, 49). The trial Court sustained the objections on the ground that the only purpose of the hearing was to determine "whether there was interference in an investigation, not the nature of the actual allegations that were reported." Id, at 40. The Stumbos assigned error to this ruling and the Court of Appeals upheld the trial court. In re Stumbo, 143 N.C. App.375, 547 S.E. 2d 451, 456 (2001). These rulings are erroneous and this Court should reverse.

A. The Statutory Phrase, "Without Lawful Excuse," Requires the DSS to Make a Showing Before Expanding the Scope of an Investigation Over Parents' Objections.

The noninterference statute establishes the statutory standard DSS was required to meet before the trial court could issue a noninterference order. It provides, in part, that DSS bore the burden of proving "by clear, cogent, and convincing evidence that [the Stumbos], without lawful excuse, . . . obstructed or interfered with [its] investigation . . . ." N.C. GEN. STAT. 7B-303(c) (emphasis added).

The statutory phrase "without lawful excuse" is not defined. As the United States Supreme Court has held, "The phrase 'without a just cause or legal excuse' does not in any effective manner restrict the breadth of the regulation; the words themselves have no ascertainable meaning either inherent or historical." Thornhill v. Alabama, 310 U.S. 88, 100 (1944). Accordingly, if the phrase "without lawful excuse" has no "historical" meaning in North Carolina law, it would be unconstitutionally vague. Additionally, when interpreting a statute, courts must give meaning to all of the statute's provisions. State v. Buckner, 351 N.C. 401, 408, 527 S.E. 2d 307 (2000). By refusing to consider the Stumbos' evidence under the lawful excuse rule, the trial court and the Court of Appeals erroneously rendered the statutory phrase "without lawful excuse" to be a nullity.

The lawful excuse rule is neither vague nor mere surplusage. The lawful excuse rule has an historical meaning in North Carolina case law, which gives the noninterference statute a precise meaning. By including "without lawful excuse" in the noninterference statute, the legislature intended to require trial courts to consider evidence of the factual circumstances surrounding a report of child neglect. Furthermore, in non-emergency situations, the lawful excuse rule mandates that North Carolina courts may issue a noninterference order only on a finding that sufficiently adequate grounds exist to believe that neglect or abuse has occurred to justify expanding the scope of the search or interrogation over the parents objection.

B. The "Lawful Excuse Rule" Mandates that Trial Courts Consider Evidence and to Make Findings and Conclusions Demonstrating that Sufficient Grounds Existed to Expand a Child Neglect Investigation.

The "lawful excuse rule" had its origin in North Carolina law in State v. Robinson, 248 N.C. 282, 287, 103 S.E.2d 376 (1958). See State v. Duncan, 270 N.C. 241, 245, 154 S.E. 2d 53, 57 (1967). In the context of probation revocation hearings, the Court of Appeals has held that "in applying the 'lawful excuse' rule, a trial court is mandated to consider facts brought forth by the defendant which demonstrate that he has a lawful excuse. . . ." State v. Hill, 132 N.C. App. 209, 212, 510 S.E. 2d 413, 415 (1999). Furthermore, the Court of Appeals explained that the policy behind the "lawful excuse rule" involves "conscientious judgment, not arbitrary or willful action. It takes account of the law and the particular circumstances of the case, and is directed by the reason and conscience of the judge as to a just result." Id. (emphasis added) (internal quotations omitted).

Additionally, the Court of Appeals held that under the lawful excuse rule, a trial court must make findings of fact that clearly show that it considered and evaluated the lawful excuse evidence. Id. "Obviously, defendant is entitled to have his evidence considered and evaluated." Id. In other words, it was not enough for DSS simply to offer evidence that a demand was made and rejected; the "lawful excuse rule" required the trial court to admit and consider evidence regarding whether the rejection "was for a lawful reason." In the Matter of Browning, 124 N.C. App. 190, 191, 476 S.E. 2d 465, 466 (1996) (evaluating evidence that parent's refusal to submit children to psychiatric evaluation based on First Amendment free exercise of religion clause constituted a lawful excuse under N.C. GEN. STAT. 7B-303). The Court of Appeals' majority opinion in this case is baffling in the light of its earlier holding in Browning.

In an investigation of a report of alleged child abuse or neglect, the "particular circumstances of the case" include the nature of the allegations, identity of the reporter, evidence explaining the facts leading to the report, evidence tending to show that the allegations are unfounded, and evidence surrounding the assertion of a constitutional right to be free from the demands of the social workers. For example, the United States District Court for the Eastern District of North Carolina expressly held that the statutory phrase "without lawful excuse" in the noninterference statute allows parents to raise rights protected by federal law in a hearing conducted under N.C. GEN. STAT. 7B-303. Renn v. Garrison, 845 F.Supp. 1127, 1130 (1994). It is difficult to imagine how a respondent in a petition alleging obstruction or interference with a child neglect investigation could raise a federal claim as a lawful excuse without introducing evidence in support of that claim.

C. The "Lawful Excuse Rule" Ensures that a Neutral, Detached Magistrate Will Decide the Scope of Child Neglect Investigations, Not Social Workers.

The legislative intent behind requiring social workers to petition a magistrate before pursuing a child neglect investigation over the objections of parents is to ensure that an orderly process is followed, involving judicial impartiality, whereby a neutral and detached magistrate can make informed and deliberate determinations regarding the need for further investigation. See State v. Isleib, 80 N.C. App. 599, 607, 343 S.E. 2d 234, 239 (1986) (describing role of magistrate; overruled on other grounds). To leave such decisions to social workers in non-emergency situations would allow hurried actions by those engaged in the often competitive enterprise of ferreting out child neglect. See id.

As the Supreme Court said in Stump v. Sparkman, 435 U.S. 349, 362 (1978), the factors that determine "whether an act by a judge is a 'judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Even in emergency situations the legislature has required social workers to demonstrate to a magistrate that probable cause exists to believe that the juvenile is at risk of immediate harm. N.C. GEN. STAT. 7B-303(d). If the state must demonstrate probable cause in an emergency, it would be senseless to hold that the legislature intended that no showing at all is required in a non-emergency. The noninterference statute requires "clear, cogent, and convincing" evidence that the refusal was without lawful excuse. Under the well-established "lawful excuse rule," a court cannot properly discharge its duty without fully considering proffered evidence tending to show that no adequate cause exists to justify expanding the scope of the investigation.

In this case, the social worker arrived at the home to find the mother present, all of the children being properly supervised, and all of the children well cared for and showing no signs of abuse or neglect. Both Mrs. Stumbo and Mr. Stumbo explained that the circumstances surrounding the report were such that any reasonably objective social worker would conclude that all was well at the Stumbo home. But because her "protocol" required her to search the home and interrogate the children privately, Ms. Lowery and DSS have blindly sought to check all the protocol boxes with absolutely no showing that the Stumbo children are likely victims of abuse or neglect, much less that probable cause exists.

D. Like North Carolina, Many States Require a Showing of Neglect Before a Court May Issue a Noninterference Order.

At least 23 states have statutory or administrative provisions requiring social services agencies to petition courts to issue noninterference orders if parents object to expanding the scope of the investigation. Many of those statutory provisions expressly require a showing by the social workers that probable cause, reasonable grounds, reasonable suspicion, good cause shown, or some other grounds exist to believe that abuse or neglect has occurred before a magistrate may issue a noninterference order. Each of these statutes reflect a legislative intent that is similar to that of the legislature in North Carolina: once parents object to particular aspects of a social worker's investigation, it is the courts -- not the social worker -- that will determine whether there is a proper ground to expand the scope of the investigation.

For example, in H.R. v. State Dep't of Human Resources, 612 So.2d 477, 479 (1992), the court interpreted the statutory phrase "cause shown" in Alabama's noninterference statute to mean "reasonable or probable cause shown, i.e., reasonable or probable cause shown to believe that there has been an abuse of a child. . . ." The court reasoned that unsworn hearsay in a report to social services rose at best to mere suspicion and would not support a noninterference order. Id. Generally, "good cause shown" or "just cause" has been held to be equivalent to "without lawful excuse." See, e.g., State v. Filor, 13 P.3d 926, 927 (Kan. App. 2000); see also 692 Blacks Law Dictionary, "Good cause. Term generally means a substantial reason amounting in law to a legal excuse for failing to perform an act required by law." (6th Ed. 1990). Judge Greene in his dissent below agreed that under North Carolina law, the state must make a showing of reasonable ground to suspect that neglect had occurred and that an anonymous report alone "would rarely, in itself, constitute reasonable grounds for suspecting a person to have abused/neglected a child." In re Stumbo, 547 S.E.2d 457, n 4 (N.C. App. 2001) (Greene, J., dissenting).

E. Noninterference Order is a Judicial Warrant that Must be Supported by Probable Cause

While Judge Greene was correct that some showing was required, the United States Supreme Court has said that every judicial warrant requires probable cause:

While it is possible to say that the Fourth Amendment reasonableness demands probable cause without a judicial warrant, the reverse runs up against the constitutional provision that "no Warrants shall issue, but upon probable cause." Amendment 4. The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause.

Griffin v. Wisconsin, 483 U.S. 868, 877 (1987) (emphasis added).

The trial court order is a judicial warrant: it tells the Stumbos that they "are to not obstruct, interfere with the investigation[.]" R. p. 23. As such, it does not comport with the Fourth Amendment, which requires every warrant to "particularly describe the place to be searched." The trial court left the "place to be searched" completely up to DSS. In open court, the trial court explained that the decision about whether to enter the home would be up to the social worker: "I'm not ordering anyone into the home. If you all want to do your investigation, you do your investigation. If you determine that you don't need to go into the home, determine that. All I'm ordering is that they not interfere." (T p. 72). In other words, while the court order does not mandate entry into the home, neither does it forbid entry. The trial court gave the social worker a blank check relative to all aspects of the investigation including entry into the home. The Stumbos were told to simply comply with every whim of the social worker under this unlimited authorization.

Additionally, according to the trial court and the majority opinion, neither the specific nature of the hearsay allegation nor any evidence of surrounding circumstances refuting the allegation are relevant. According to the trial court and the majority opinion below, the only relevant inquiry at the hearing on a petition for a noninterference order is whether the social worker sought to expand the scope of the investigation and the parents refused to allow it. According to the trial court and majority opinion of the Court of Appeals, the Stumbos could now be held in criminal contempt if they refuse the social worker entry to their home or refuse the private interrogation of their young children.

Rather than exercising what the legislature has determined to be a judicial function, the trial court deferred to the determination of the social worker backed by the prospect of contempt proceedings. By abdicating the role of the neutral, detached magistrate, the trial court thwarted the legislative intent behind the "lawful excuse rule" and the Fourth Amendment.

North Carolina law requires more. The trial court was duty-bound to carefully consider evidence of all the circumstances and after reasoned deliberation to determine whether the facts of this case justified expanding the investigation to include a search of the Stumbos' home and justified seizure of their children to interrogate them in private. That was the demand made at the Stumbos' door. That was the demand the Stumbos rejected. That demand was not justified by reasonable grounds or the surrounding circumstances in this case, much less probable cause.

More than two years have passed since the social worker appeared at the front door of the Stumbos' home and demanded to enter and to interrogate their children without justification. No useful purpose can be served by remanding this case for further findings. This Court should reverse the Court of Appeals and the trial court and order that the petition be dismissed with prejudice.

II. Does the Investigation Mandated by N.C. GEN. STAT. 7B-302 and Implemented by N.C. ADMIN. CODE tit. 10 41I.0305 Constitute a "Search" for Constitutional Purposes, as Judge Greene Argues in His Dissent?

Assignments of Error No. 2, 4

(R p. 30)

Contrary to the Court of Appeals opinion, the record reflects that DSS sought entry into the home as well as private interviews with each child. It was that assertion of right that the Stumbos claimed a "lawful excuse" to resist. If DSS had no right to enter the home on September 9, 1999, then the Stumbos "lawful excuse" for resisting that entry must prevail. This Court should reverse the trial court and hold that the demand DSS made at the door was a search requiring probable cause.

A. A Search Must Be Evaluated on What Officials Did at the Time of the Incident.

Whether DSS demanded to search the Stumbos' home depends solely on what happened when Tasha Lowery came to their door. DSS argues that the incident at the door doesn't matter; that the only thing that matters now is the order the trial court issued (Petitioner/Appellee's Court of Appeals Brief, p. 7). This cannot be true: if parents can claim a "lawful excuse" at all, then it must be a lawful excuse to oppose what happened at the door. Timing always matters when government action intrudes upon the Fourth Amendment rights of citizens. The lawfulness of official action is determined as it was at the time of the alleged violation, not as the officials recast their assertions long after the fact.

The "facts at the door" always matter when citizens resist government action. They matter when citizens claim a right to resist an unlawful search of the home. Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001) (an unlawful arrest in the home); State v. Sparrow, 276 N.C. 499, 512, 173 S.E.2d 897, 906 (1970). They matter in probable cause cases, because probable cause is always determined by what the officer actually knew at the time, not by what somebody did or said later. Moore v. Evans, 124 N.C.App. 35, 476 S.E.2d 415 (1996); Fowler v. Valencourt, 108 N.C.App. 106, 112, 423 S.E.2d 785, 788 (1992). They matter in qualified immunity cases, which always turn on the "objective legal reasonableness" of an official's action, assessed in light of the legal rules that were "clearly established" at the time the action was taken. Anderson v. Creighton, 483 U.S. 635, 640, (1987); Roberts v. Swain, 126 N.C.App. 712, 718, 487 S.E.2d 760, 765 (1997); Corum v. University of North Carolina Through Bd. of Governors, 330 N.C. 761, 777, 413 S.E.2d 276, 286 (1992). The facts at the door matter here, too.

The Stumbos claimed a lawful excuse to say "no" to Tasha Lowery's demands at the door, not an excuse to say "no" to her lawyer's toned-down demands made months later in appellate court briefs. The Stumbos refused to submit to DSS at the door because neither the facts nor the law required them to allow a warrantless entry of their home or seizure of their children.

B. DSS Asserted a Right and a Duty to Enter the Stumbos' Home

The Court of Appeals erroneously reads the record to indicate 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, 547 S.E.2d at 454-55. This is inaccurate. DSS demanded entry, and DSS conceded in its appellate brief that Ms. Lowery did request an opportunity to see the home.

The record shows that Ms. Lowery was seeking to enter the home at every step of the investigation. On the phone, Mr. Stumbo told her how Jonie had chased the kitten out the door (T p. 17), but she said she still needed to talk with everybody "in the household." (T p. 17). She told him that "Cleveland County protocol" required her to interview the children privately and "inspect the house." (T p. 43).

The record clearly shows that the Stumbos understood this to mean "entry into the home," and Ms. Lowery understood it to mean the same thing. When she told the Stumbos that she needed "access" to complete her report (in addition to "access to the children" (T p. 22), she did so because the regulations require her to "assess whether the specific environment in which the child is found meets the child's need for care and protection." N.C. ADMIN. CODE tit. 10 41I.0305(a)(1) (emphasis added). Although the Stumbos argued that the "specific environment," in this case, meant the driveway (Respondent's Brief Opposing Petition, R. 8), DSS has never accepted that proposition.

The DSS worker testified that she must "make a home visit, talk with the parents privately and talk with the children privately" each time she conducts an investigation. (T pp. 14-15). Her duty to "make a home visit" comes straight from the Administrative Code, which requires her to conduct "a visit to the place where the child or children reside." N.C. ADMIN. CODE tit. 10 41I.0305(e). The Stumbos, at their door, argued that a "visit" did not require her to enter the home, but DSS expressly disagreed with that interpretation of the law. (T p. 31).

When the trial judge characterized the case as "merely wanting to talk to the children," the Stumbos immediately corrected her, and the judge agreed with that correction:

THE COURT: And you think that's a violation of their constitutional rights because they just want to talk to them about a report; is that what you're saying to the Court?

STUMBOS' ATTORNEY: More specifically because they want to enter the home without probable cause.

THE COURT: They want to enter the home without probable cause, okay.

(T pp. 54-55).

The DSS worker testified that she did not "ask" to enter the home, yet DSS concedes that she "did request an opportunity to see the home" in their appellate brief. Petitioner/Appellee's Court of Appeals Brief, p. 8. The Court of Appeals, relying so completely on one single, self-serving statement, disregards modern investigative technique: investigators are trained to get information, not permission. Asking for permission only gives the subject a chance to say "no." The uncontroverted evidence in the record indicates that while Ms. Lowery may not have asked permission to enter the Stumbo home, she told them that her protocol required that she enter. Demanding that "my protocol requires access to your home" is not a request and is considerably more daunting to refuse.

In this case, however, the Stumbos said "no" anyway, and were taken to court for it:

DSS ATTORNEY: Now, and did you ask to go inside the home?

TASHA LOWERY: No.

DSS ATTORNEY: But you were told you could not come inside the home; is that correct?

TASHA LOWERY: Well, right because they went - they went into the house and closed the door and I was still outside.
(T p. 39).

Mr. Stumbo went inside and closed the door because he understood Cleveland County protocol to require DSS to "inspect his home." DSS, which filed this suit, has never disavowed the right to do so. DSS never suggested they could get by without entry until after the trial court judge began to realize that her order might violate the Fourth Amendment, even though she had already decided social workers could not violate the Constitution. (T pp. 71-72). Beginning at the front door, in its petition and throughout this litigation, DSS has taken the position that social workers have a right and a duty to enter homes, with or without probable cause. That remains the central controversy in this case. The reason the Stumbos did not submit to DSS was to protect their home from a groundless search and their children from an unjustified custodial interrogation.

C. The Government May Not Demand Entry Into a Home Without Probable Cause and a Warrant.

Warrantless searches of private homes by government officials are presumptively illegal under the Fourth Amendment. Payton v. New York, 445 U.S. 573 (1980). "It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997).

DSS contends that the Fourth Amendment only applies to police, Petitioner/Appellee's Court of Appeals Brief, p. 8, n2, and calls it "ludicrous" to apply it to social workers, (T p. 60). Court after court has disagreed. See, e.g., Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999) (social workers had to pay damages for unlawful entry to home); Ram v. Rubin, 118 F.3d 1306 (9th C. 1997) (reversing decision that found police liable but granted qualified immunity to social workers because law was clearly established for police and social workers alike); Good v. Dauphin Social Servs., 891 F.2d 1087 (3d Cir. 1989) (social workers are subject to the Fourth Amendment and can be held liable for violating it); Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999) (child welfare workers are subject to the Fourth Amendment because the law is "clearly established"). The United States Supreme Court has left no room for debate on this subject: the Fourth Amendment is applicable to the activities of civil as well as criminal authorities: "building inspectors, Occupational Safety and Health Act inspectors, and even firemen entering privately owned premises to battle a fire, are all subject to the restraints imposed by the Fourth Amendment." New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (citations omitted).

Some Fourth Amendment cases do discuss the presence of the police along with social workers, but these tend to be qualified immunity cases, where the court must determine whether the law was "clearly established" at the moment of the incident, not whether the Fourth Amendment applies to social workers. It clearly does.

There was no police presence in Ferguson v. City of Charleston, 532 U.S. 67 (2001), where the United States Supreme Court refused to create a "special needs exception" for hospital workers who were trying to help "crack babies." The Court concluded that a hospital's mandatory urine test policy violated the Fourth Amendment. If the police were involved in any way, it was, as Judge Greene noted in his dissent, exactly as they are involved here: North Carolina law requires social workers to turn evidence of criminal wrongdoing over to law enforcement. In re Stumbo, 547 S.E.2d at 457 (Greene, J., dissenting) (citing Ferguson, supra, 121 S.Ct. at 1292). Unlike Wyman v. James, 400 U.S. 309 (1971) (where welfare recipients were required to submit to home visits as a condition of receiving benefits), the government here has coercive power to enter the home in search of evidence. This violates the Fourth Amendment.

The trial court tried to distinguish away the cases that hold social workers subject to the Fourth Amendment on the basis of things that happened after they entered a home or seized a child. (T p. 53). This is illogical: if the parents had a right to keep the social worker out of the home, that right existed before the social worker came through the door, and cannot depend on what happened after the social worker got in. Any bad things the social workers do after they enter the home without probable cause and a warrant may increase the damages they must pay, but they do not create constitutional liability. For example, in Calabretta, social workers strip searched the child after coercing entry. That made things worse, but the Constitution was violated the moment they came in the door.

Here, DSS has sought and has obtained a court order that allows it to demand anything it deems necessary "to carry out their duty to investigate." N.C. GEN. STAT. 7B-303(b). As Judge Greene noted, this order may be enforced by civil or criminal contempt. In re Stumbo, 547 S.E.2d at 457 (Greene, J., dissenting). If DSS finds any evidence of a crime, it must immediately report it to the district attorney and local law enforcement. N.C. GEN. STAT. 7B-307(a). This broad, coercive, search for evidence of criminal wrongdoing was not supported by probable cause (T p. 54) nor even by evidence sufficient to show some reasonable suspicion. In re Stumbo, 547 S.E.2d at 458 (Greene, J., dissenting). This investigation has expanded into an unconstitutional search.

D. Parents Have a Right to Oppose Unlawful Assertions of Government Authority

DSS's position at the door and at the hearing was that social workers were not state actors (T pp. 26, 50-51), the Fourth Amendment did not apply to child abuse investigations (T p. 25-26, 55), parents could not cite the Constitution as a "lawful excuse" in a 7B-303 hearing (T p. 57), and that no "substantial constitutional rights" were implicated by a court order compelling the Stumbos to do whatever social workers believed was necessary to complete the investigation. (T pp. 73-77). The Stumbos objected to those assertions then, and they object to them now. Each time a public official carries out a lawful demand, they do their part to uphold the law. Each time a citizen resists an unlawful government demand, they do their part to uphold the Constitution.

The Fourth Circuit articulated this principle recently in Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001), where a homeowner was charged with obstruction of justice for refusing to permit a warrantless search of the curtilage of his home that was based on less than probable cause. The court upheld the homeowner's right to verbally oppose the police. Otherwise, "persons verbally opposing an illegal search would . . . have to walk a very fine line between granting implicit consent and objecting in a sufficiently vociferous manner as to constitute obstruction of justice." Rogers v. Pendleton 249 F.3d at 292 (4th C. 2001) (emphasis added).

One who resists an illegal entry is not resisting an officer in the discharge of the duties of his office. State v. Sparrow, 276 N.C. 499, 512, 173 S.E.2d 897, 906 (1970), citing State v. Cesero, 146 Conn. 375, 151 A.2d 338 (1959); King v. State, 246 Miss. 86, 149 So.2d 482 (1963); People v. Young, 100 Ill.App.2d 20, 241 N.E.2d 587 (1968).

The right to resist an unlawful entry is based on the common law and on "the constitutional principle that a person's home is his castle." Sparrow, 276 N.C. at 512, citing Semayne's Case, 77 Eng.Rep. 194, 195, 11 English Ruling Cases 628, 631 (1604) (emphasis added); Cooley, Constitutional Limitations 364 (6th Ed. 1890); State v. Covington, 273 N.C. 690, 698, 161 S.E.2d 140, 146 (1968); State v. Mooring, 115 N.C. 709, 20 S.E. 182 (1894).

According to this Court, this right is founded on "the oldest and deepest hunger of the human heart." State v. Carter, 322 N.C. 709, 717, 370 S.E.2d 553, 558 (1988). Citizens long for "a place where one may dwell in peace and security," a place where one can "keep inviolate from public scrutiny one's innermost aspirations and thoughts, one's most intimate associations and communications, and one's most private activities." Id. DSS has asserted a right to invade that space anytime anyone alleges abuse or neglect, whether the allegation is credible or not, and whether the alleged neglect is serious or utterly trivial. DSS may intrude into the home when there is sufficient evidence to justify it, but not every time a child chases a kitten out the door. The Stumbos had a lawful excuse to oppose this search.

III. Is the Court-Ordered Separation of a Parent and Child for the Purpose of Unrestricted Personal Interrogation of the Child a "Seizure" Within the Meaning of the Fourth Amendment to the United States Constitution?

Assignment of Error No. 3

(R p. 30)

The Stumbos have contended throughout this brief that the proper time frame for assessing whether or not they had a "lawful excuse" for resisting the demands of the social worker were the events as they unfolded at their home on September 9, 1999. However, in this section of the brief, we address DSS's efforts to revise their demands in the courtroom. Assuming, arguendo, that this Court determines that the relevant demand was the one made in the courtroom--we only want to interview the children in private and do not want to enter your home--DSS's position is still contrary to the language of and the precedents arising under the Fourth and Fourteenth Amendment.

DSS has never claimed that the social worker gave any explanation as to where a "private interview" might take place if it were not to be done in the family home. Since 7B-302(a) requires DSS to "specifically describe the conduct alleged to constitute obstruction or interference"; and 7B-302(c) places "the burden of proof" on DSS to establish the interference by "clear, cogent, and convincing evidence" any ambiguity as to the nature of the demand for a private interview has to fall on the shoulders of DSS.

It is true that the DSS lawyer speculated that the interview might have been done somewhere outdoors on the Stumbos' property. (T pp. 71-71). This came after the trial court concluded that the Stumbos had violated the law, as it began to struggle with how to word a judicial warrant that would not violate the Constitution. ("He's saying my order is a violation of the Fourth Amendment." (T p. 72)). However, there is not a shred of evidence in the record that such a suggestion was ever made to the Stumbos before the court ordered them not to interfere. Since the statute repeatedly demands proof of the Stumbos' interference or obstruction, part of DSS's burden is to show what the Stumbos understood the demand to be at the scene. We would respectfully urge this Court to hold DSS to its burden of demonstrating that neglect had occurred before ordering the interviews.

However, the Stumbos respectfully suggest that there is no scenario, real or speculative, whereby DSS could avoid the application of the Fourth Amendment. We contend that the removal of these children from the control of their parents--even temporarily--for a coerced interview is a "seizure" within the meaning of the Fourth Amendment. Accordingly, DSS would have to prove it had probable cause (the Fourth Amendment standard) to believe that the Stumbos had abused or neglected their children to justify the judicial order mandating the interview.

A. The Temporary Removal of a Child from the Custody of Their Parents is a Seizure Within the Meaning of the Fourth Amendment.

In J.B. v. Washington County, 127 F.3d 919 (10th Cir. 1997), a home schooled girl was temporarily removed from the custody of her parents to conduct an interview to determine whether or not the child had been sexually abused. The court held that the Fourth Amendment governed this temporary removal even though it was just for a private interview. "The district court was also correct in holding that the County officials' temporary removal of L.B. from her home is a seizure which implicates L.B.'s own Fourth Amendment rights." 127 F.3d at 926.

A similar reading of the Constitution was reached in Van Emrik v. Chemung County Dep't of Social Services, 911 F.2d 863, 867 (2nd Cir. 1990):

We believe the Constitution assures parents that, in the absence of parental consent, x-rays of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances.

Van Emrik, 911 F.2d at 867.

The Stumbos brought three additional cases to the attention of the Court of Appeals regarding their argument on this point: Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999); and Robinson v. Via, 821 F.2d 913 (2d Cir. 1987). The Court of Appeals distinguished all of these cases on the basis that the children were removed for "several days" (Wallis), also included a medical exam (Tenenbaum), and the children were taken to "police barracks where they remained for over two hours" (Robinson). Based solely on these supposed factual distinctions, the Court of Appeals concluded:

The cases cited by respondents do not compel the conclusion that a private interview with a child, pursuant to a child abuse or neglect investigation, necessarily constitutes a "seizure" warranting Fourth Amendment protection.

In re Stumbo, 547 S.E.2d at 455.

However, the Court of Appeals used an incorrect standard in distinguishing these cases. The difference is not between "major" and "minor" seizures of the children, as implied by the Court of Appeals' decision. Instead, the correct standard to determine whether or not a seizure has occurred is whether or not in view of all the circumstances, the children would feel free to leave the interview. United States v. Mendenhall, 446 U.S. 544, 554 (1980); State v. Gaines, 483 S.E.2d 396, 406 (N.C. 1997).

The standard used in Tenenbaum to determine that the child had been seized was whether the child felt free to leave. The court determined that a child removed from school and brought to a hospital was seized under the Fourth Amendment. The court in Yuan v. Rivera, 48 F.Supp.2d 335, 345 (S.D.N.Y.1999), used precisely the same standard to determine that a child had been seized by government officials. In addition, the court in Kia P v. McIntyre, 2 F.Supp.2d 281 (E.D.N.Y.1998) held to this same standard even in the case of a newborn infant being held in a hospital.

A young child being interrogated by an adult authority figure such as a social worker would assume that he was required to both answer the questions and not leave until the interrogation was completed. This is especially so if the interrogation were to be conducted somewhere other than in the Stumbos' home. The combination of an adult authority figure, an interview which the child is fully aware that the parent does not want but is allowing, and a strange location, would cause any child to believe that he was not free to leave.

Thus, the correct standard that the Court of Appeals should have applied is whether the child would have felt free to leave the interview. The Court of Appeals does not cite a single case for the proposition that removing the children for a "short interview" leads to a different legal result. It is not enough to merely distinguish the facts--especially when no authority to the contrary is cited. Instead, the court should have examined the standard used.

In any event, even if a private interview by a social worker in some cases does not implicate the Fourth Amendment, the noninterference statute required DSS to make a predicate showing of the need for the private interviews before the trial court could lawfully issue the order. See discussion in section I(D), supra. The record is devoid of evidence supporting the need for these interviews and the trial court should be reversed.

B. Parents May Assert the Fourth Amendment Rights of Their Minor Children

Under circumstances like those in this case, "Undoubtedly, parents may assert their children's Fourth Amendment rights on behalf of their children." Hollingsworth v. Hill, 110 F.3d 733, 738 (10th C. 1997). In appealing DSS's demand to interrogate their children, this is precisely what Petitioners are doing. When the parents in Malik v. Arapahoe County Dept. of Social Services, 191 F.3d 1306 (10th C. 1999), asserted their children's Fourth Amendment rights, that court held that the law was clearly defined that "parents may assert their children's Fourth Amendment rights on behalf of their children."

Second, the court in J.B. held that "there may be circumstances in which a parent has Fourth Amendment standing to challenge a seizure involving a minor child." J.B., 127 F.3d at 928. See 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 9.2 at 732-33 and nn. 26-28 (1984).

In addition, Wallis makes a key distinction in this matter. The parents' claims of invasion of family privacy (discussed infra) are properly assessed as Fourteenth Amendment claims, and the claims of the children are to be assessed as Fourth Amendment claims. The Wallis court stated that parents could raise the Fourth Amendment claims of their children, and that since "the same legal standard applies in evaluating Fourth and Fourteenth Amendment claims for the removal of children," the court analyzed both claims together. DSS recognizes that one may characterize the Stumbos' right "either as a Fourth Amendment right against unreasonable searches and seizures or as a Fourteenth Amendment privacy right." Petitioner/Appellee's Court of Appeals Brief, p. 8.

Additionally, parents may raise claims based on their Fourteenth Amendment rights to privacy in their family. Parents have a constitutionally protected liberty interest in the care, custody and management of their children. Tenenbaum, 593. See also Santosky v. Kramer, 455 U.S. 745 (1982); Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir.1991); Van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 867 (2d Cir.1990). What DSS wants in this case is more intrusive than the "third party visitation" the Supreme Court struck down in Troxel v. Granville, 530 U.S. 57 (2000), and is based on less evidence. There, at least, the trial court found that visitation was in the best interest of the child. Here, there is no showing that could possibly justify custodial interrogation.

The separation of the Stumbo children from their parents for an interview with DSS is a seizure under the Fourth Amendment. Because DSS does not have probable cause to seize the children, the interview should be prevented. The decision of the Appellate Court should be overruled.

CONCLUSION

North Carolina law requires the government to demonstrate probable cause that abuse or neglect exists before a judge may issue a noninterference order that authorizes a search or a seizure. There was no showing of probable cause in this case--there was not even reasonable suspicion. The Stumbos had a right to protect their home and a duty to protect their children, even if someone did see Jonie chase a kitten out the door. We urge this Court to uphold the rights and responsibilities of parents by reversing the court below.

Respectfully submitted this _______ day of December, 2001:

Stam, Fordham & Danchi, P.A.

By: _____________________________

Paul Stam, Esq.
Stam, Fordham & Danchi, P.A.
106 Holleman St.
P.O. Box 1600
Apex, North Carolina 27502
919-362-8873

Home School Legal Defense Assoc.

By: _____________________________
Michael P. Farris, Esq.

By: _____________________________
James R. Mason, Esq.

By: _____________________________

Scott W. Somerville, Esq.

Purcellville, Virginia 20134
540-338-5600

Attorneys for Respondent-Appellants



CERTIFICATE OF SERVICE

I, Paul B. Stam, Attorney for the Respondent-Appellants, hereby certify that I have served a copy of the within Respondent-Appellant's Brief upon the following attorneys, by United States Mail postage prepaid on this the __________ day of December:

John Church, Esq.
Church, Paksoy & Wray
Post Office Box 1908
Shelby, NC 28151

Les Farfour, Esq.
Yelton, Farfour, McCartney & Lutz
Post Office Box 1329
Shelby, NC 28151

Neil A. Riemann
2800 Two Hannover Square
Raleigh, NC 27601

Paul B. Stam, Esq.

Attorney for Respondent-Appellant


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