|COURTESY OF THE STUMBO FAMILY|
|On February 11, 2002, HSLDA presented oral arguments on behalf of the Stumbo family at the North Carolina Supreme Court.|
Each year, 1-2 million allegations of child abuse and neglect are reported to social workers across America. Most allegations launch a mandatory investigation. Each investigation poses a constitutional question: Where does the state's power end and the family's privacy begin?
Home School Legal Defense Association has stood with member families against unwarranted government intrusion, even though the tide has been running against family freedom for the last 20 years.
One HSLDA member family has spent the last four years in court over this issue. But on July 16, 2003, the North Carolina Supreme Court ruled 7-0 against the Cleveland County Department of Social Services, declaring that the department did not have a legitimate basis to even begin an investigation of the Stumbo family.
"This is a tremendous decision for family rights," said HSLDA President Michael Smith. "If social workers are required to carefully examine the tips they receive before launching investigations, innocent citizens will no longer be unfairly traumatized by trivial or false allegations. Not every report warrants an investigation."
HSLDA Litigation Attorney Jim Mason called the ruling "a great victory for parents in North Carolina," adding, "Families will now be protected from aggressive social workers who are acting solely on the basis of anonymous tips."
Although HSLDA usually only provides initial consultation in non-homeschooling social services cases, our legal team saw Jim and Mary Ann Stumbo's case as a significant precedent-setting opportunity.
"A big part of our mission is protecting the rights of families," explained Mike Farris, HSLDA's General Counsel and Chairman of the Board. "Underlying parents' right to homeschool are the right to privacy in that home, the right to be secure behind their own front door from illegal searches and seizures, and the right to be protected from false accusations of criminal activity, like anonymous tips from vindictive relatives." Farris was the lead attorney for the Stumbos and argued the case before both the Supreme Court of North Carolina and the North Carolina Court of Appeals.
HSLDA handles literally hundreds of social services contacts each year. Our most recent statistics show that from July 2002 through June 2003, we received 815 calls from homeschooling families facing a social services investigation. That's an average of 68 calls per month, more than two calls per day, including weekends, taken by HSLDA's seven contact and litigation attorneys and their legal assistants. Most contacts don't end up in court because we resolve them and protect liberty at the same time. The vast majority of contacts are eventually determined unfounded by social services and never develop into a case.
According to U.S. Department of Health and Human Services statistics, out of 1,789,252 tips received by state and local child protective service agencies in 2001, nearly 60% were unsubstantiated.1 That means over one million tips were investigated and no abuse or neglect was taking place.
It started with a kitten
The Stumbos' troubles began on a September morning in 1999 when their then- 2-year-old daughter, Jonie, slipped outside to chase her new kitten. Unfortunately, she had only completed the first half of her morning dressing routinetaking off her p.j.sbefore running outside the house. Although an older sibling retrieved her a few minutes later, it was too late. A passerby reported a naked child wandering outside to social services.
Two hours later, a social worker showed up at the Stumbos' door, demanding to enter their home and privately interview each child. At HSLDA's advice, the Stumbos refused.
Despite having no probable cause for entry or private interviews, the Cleveland County Department of Social Services (DSS) convinced a judge to issue a court order forcing the family to comply. At the hearing, the judge refused to allow HSLDA Attorney Scott Somerville to introduce evidence showing that there was no abuse or neglect occurring in the Stumbo household. Instead, completely ignoring the Fourth Amendment issues, the judge limited evidence to the Stumbos' answers to two questionsdid the social worker ask to conduct an investigation, and did the parents refuse to permit the investigation?
With the Stumbos in danger of being charged with contempt of the order, HSLDA obtained a temporary stay from the Court of Appeals, giving them time to appeal the order. However, in a 2-1 decision, the Court of Appeals upheld the order, ruling that an interview of the Stumbo children without their parents' consent would not constitute a seizure subject to the Fourth Amendment.
"The court of appeals decision was contrary to many recent decisions," said Mason, "including one by the U.S. Court of Appeals for the Seventh Circuit, which specifically held that the Fourth Amendment applies to social worker interviews of children." (See sidebar "Signs of the turning tide.") He pointed out that the dissenting judge, in contrast to the majority opinion-and in agreement with the arguments in HSLDA's brief-also held that the Fourth Amendment did apply.
|COURTESY OF THE STUMBO FAMILY|
|Adventuresome Joni Stumbo poses inside the Cleveland County Courthouse at age 2 in 1999 and at age 6 in 2003.|
The final appeal
The Stumbos then appealed to the state supreme court, which heard the case in February 2002. Seventeen months later, the court ruled 7-0 in the Stumbos' favor. The majority opinion held that even if the allegations were completely true, they were not grounds for initiating an investigation. In that opinion, Justice Robert Orr called the Stumbo case "a circumstance that probably happens repeatedly across our state, where a toddler slips out of a house without the awareness of the parent or caregiver-no matter how conscientious or diligent the parent or caregiver might be . . . such a lapse does not in and of itself constitute 'neglect'."
"I was very glad the decision was unanimous," said Mike Farris. "While I originally hoped that all the judges would make a decision based on the Constitution, I was happy to see that the four-judge majority said that some reports just aren't worth investigating at all."
The majority opinion did not address the Fourth Amendment issue of whether there was probable cause to order the parents to submit the Stumbo children to interviews. However, three justices issued a concurring opinion2 indicating that the Fourth Amendment applies in child abuse investigations. The three concurring judges held that interviewing children without their parents' consent does constitute a seizure, and thus the DSS must have credible evidence of abuse or neglect before a court may order parents to submit their children to interviews. Courts all across the U.S., including the North Carolina Supreme Court (in cases prior to Stumbo), have held that anonymous tips standing alone are not credible evidence.
The concurring opinion also held that social workers are state "actors" (agents) and therefore subject to the Fourth Amendment: " . . . the trial court apparently concluded DSS was not a government actor for purposes of the Fourth Amendment. This is legally incorrect."
Tools to defend families across the country
While the North Carolina Supreme Court opinion is not binding in other states, it provides significant support for parents' rights cases across the country. "A respected court has said that social workers have to apply common sense and they have to apply the Constitution," said Farris. "When another situation like this arises, the Stumbo case can be cited as authority to a lower court to say, 'Look, don't make the mistake this lower court made.'"
"Every case we win gives us another tool in our legal toolbox and makes our work more effective," Mason explained. "If we compare the actions of the social workers in Stumbo to the actions of the social workers in the Calabretta case, we see a significant change. Rather than forcing their way into the home the way the Calabretta social workers did, the North Carolina social workers went to court to obtain authorization to interview the Stumbo children." (See sidebar "Signs of the turning tide.")
But as the North Carolina Supreme Court pointed out, the principle is not that social workers must first ask a court to rubber stamp their investigation, but that, without evidence, they aren't authorized to begin the investigation in the first place.
How does Stumbo fit into what else is going on around the country?
Taking on a case like Calabretta or Stumbo is an important component in HSLDA's battle to protect families from social workers who don't understand or don't care about the Constitution.
"We don't want what happened to the Calabrettas to happen in other places," Mason said. "When families stand firm and God grants us victory in the courts, each decision more firmly establishes legal principles around the country."
Since Calabretta, several other courts have handed down decisions telling social workers the Fourth Amendment applies to them, too. (See sidebar "Signs of the turning tide.")
Even the United States Congress has recognized this problematic pattern of social workers not respecting citizens' rights. Congress just put another tool in HSLDA's legal toolbox. Recent amendments to the Child Abuse Prevention and Treatment Act (CAPTA), also known as the Keeping Children and Families Safe Act of 2003 (S. 342), mandate that social workers must be trained in Fourth Amendment rights. (See "President Bush signs 'Keeping Children & Families Safe Act of 2003'" on page 38.)
This movement to make social services abide by common sense and the Constitution is helping HSLDA better defend our members. In a recent Arkansas case, where social workers demanded to search a family's allegedly "messy" home, the social workers asked a judge to order the family to cooperate, without telling the family or their HSLDA attorneys that they were applying for the order. As soon as HSLDA learned of this legal maneuver, we moved to quash the judge's order. Based on the Fourth Amendment arguments in HSLDA's brief (which also cited recent helpful court decisions), the prosecutor agreed with our position and told the judge the state no longer had a case.
"We couldn't get that to happen without cases like Stumbo, Calabretta, Roe, and Doe," said Mason. "The notion of people standing up for liberty and for consitutional rights is important. Jim and Mary Ann Stumbo said they stuck with their case because they're motivated to help other people-it really does work!"
Why is the Stumbo case so important?
"Homeschooling parents love children and the last thing we want to see is children being abused," Mike Smith said. "Of course, we want to see child abusers punished to the fullest extent of the law. However, there are too many unnecessary investigations of a single incident in an otherwise obviously happy and healthy family. Not every report amounts to neglect as a matter of law and families should be left alone when that happens. If we don't stand by our constitutional rights, we will lose them."
"The Constitution protects our right to privacy in our homes and right to care for, protect, and direct the education of our children. Unless there is real evidence of wrongdoing, states need to stay out of our homes. Social workers are agents of the state and they must have credible evidence before they can intrude into the family," Jim Mason added.
"Our members who are standing with us in the cause of liberty are really doing tremendous work," Smith pointed out. "It wasn't easy for the Stumbos, it wasn't easy for the Calabrettas or any other family, but our members are standing for liberty every day."
Because of parents like the Stumbos who anchor their families' rights in the Constitution, the courts are listening, Congress is responding, and social service agencies are getting the message. Together, these courageous families are helping to form a solid seawall protecting liberty. The tide is turning.
1 Source: U.S. Department of Health and Human Services website, accessed July 24, 2003, http://www.acf.hhs.gov/programs/cb/publications/cm01/table2_5.htm
2 Concurring opinion, Law. (in appellate courts) an opinion filed by a judge that agrees with the majority or plurality opinion on the case but that bases this conclusion on different reasons or on a different view of the case. (Random House Webster's Unabridged Dictionary, c. 1999, Random House, Inc.)