Search warrant and case info

Is it Necessary for Protective Services Social Workers to Obtain a Warrant
to Investigate a Child Abuse or Neglect
Increasingly, social workers and public child welfare agencies are defending legal challenges to their right
to investigate reports of suspected child abuse or neglect without first obtaining a search warrant. Many of
the lawsuits have been based on constitutional law provisions protected by 42 U.S.C.§ 1983 which permits
individuals to sue governmental actors for violations.
There is tension between the privacy rights of families and the need to investigate and identify child abuse
and neglect in order to protect children. Social workers involved in child protective services are required to
make on-the-spot decisions about child removal in an atmosphere of legal uncertainty. Federal courts are
split as to the appropriate legal test to apply in cases involving investigative home visits by social workers
and protective services caseworkers.
This year the federal Child Abuse Prevention and Treatment Act (CAPTA) is before Congress for
reauthorization. This legislation, first enacted in 1974, provides federal funding to states to maintain a
system for reporting child abuse and neglect and for evaluating and responding to such reports. These
systems are to provide for mandated reporting, legal immunity for those who make reports in good faith,
and the preservation of confidentiality. Child welfare social workers acting in good faith in accordance
with the various state child protection statutes need to be informed about the current state of the law in their
region.
Applicable Legal Standards
The standard established by the Fourth Amendment of the U.S. Constitution is that searches by state or
public officials of private homes are presumed to be unreasonable absent probable cause and a warrant.
The presumption of unreasonableness can be overcome by a showing of consent or the existence of exigent
circumstances requiring entry. A number of cases involving child abuse investigations interpret the facts of
a given situation to determine whether the scenario was one that required immediate action or whether
sufficient time could have been allowed to obtain a warrant.
An alternate Fourth Amendment standard that has been applied is the “special needs” test. This standard
carves out certain types of situations as being unique and requiring a balancing of the government’s
interests with the privacy rights of the individual. In these circumstances, the lack of a warrant may be a
factor to consider, but the presumption of unreasonableness is not created. Thus, the special needs test
would be easier for an investigating social worker to meet.

The cases challenging social workers’ rights to investigate child abuse without a warrant present a number
of different factual scenarios that affect the legal analysis. Some of the factors affecting the outcome are as
follows:
• Whether the social worker entered the premises alone or accompanied by a police officer
• Whether the social worker entered the premises freely or used varying degrees of implied threats to
gain entrance
• Whether the social worker removed articles of the child’s clothing, touched the child or used
photography to collect evidence
• Whether there was eventually a substantiated finding of child abuse or neglect
• Whether the investigation proceeded with urgency or after a significant delay.
In cases involving an investigator’s visual search of a child’s body cavities, the federal circuit courts are
split. The special needs test has been applied by the Seventh Circuiti
(with indications that the Fourth
Circuit is leaning that direction).ii The traditional Fourth Amendment standard was applied in the Third,iii
Ninth,iv and Tenthv
Circuits, and an intermediate position was used in the Second Circuit.vi

Review of Recent Cases
In Roe v. Texas Department of Protective and Regulatory Services, 299 F.3d 395 (2002), the court
determined that a warrantless, visual search of the child violated the Fourth Amendment’s prohibition
against unreasonable searches. However, the social worker was entitled to qualified immunity because the
status of the law was not clear at the time the violation occurred, and thus the claims were disallowed.
A more harsh outcome for social workers was recently handed down in a 2003 Ohio case, Walsh v. Erie
Co. Dept of Jobs and Family Services, 240 F.Supp.2d 731. That search involved accompaniment by police
officers and an allegation that one of the caseworkers blocked the driveway with a car, preventing the
family from leaving the premises. The federal trial court applied the more stringent Fourth Amendment
test and denied qualified immunity to the social workers involved, stating “There is no social worker
exception to the Fourth Amendment.”vii
A recent Seventh Circuit opinion, Doe v. Heck, 327 F.3d 492 (2003), utilized the more stringent Fourth
Amendment test in a situation that involved the investigation of corporeal punishment in a private school
over the objection of school officials and distinguished that from earlier cases involving searches at public
schools with the consent of school officials. The expectation of privacy was deemed to be higher in the
private school setting, providing justification for holding social workers to a higher legal standard. The
caseworkers in this instance were granted immunity from suit due to the uncertainty that existed in the law
at the time of the alleged violation.
In analyzing a social worker’s legal obligations in situations involving child abuse investigation and
removal of the child from the home, the Tenth Circuit recently decided Roska v. Peterson, 2003 WL
1963209. In contrast with that court’s earlier rulings, this case focused on the child welfare workers, rather
than on investigations by police officers. Among the caseworkers’ arguments for immunity from liability
was the fact that they relied in part on the Utah statute authorizing removal of a child from the home
without a hearing in advance. The court applied a different legal standard to be used for determining
whether it was “objectively reasonable” for the child welfare workers to rely on the state law:

[A] court must consider whether reliance on the statute rendered the officer's conduct
"objectively reasonable," considering such factors as: (1) the degree of specificity with which
the statute authorized the conduct in question; (2) whether the officer in fact complied with the
statute; (3) whether the statute has fallen into desuetude; and (4) whether the officer could have
reasonably concluded that the statute was constitutional.
The Stumbo Case
Social workers and home school advocates find themselves on opposite sides of a controversial legal battle
in a pending North Carolina case that explores the boundaries of child protective services’ investigative
authority, In the Matter of Stumbo, 143 N.C.App. 375, 547 S.E.2d 451 (N.C.App., 2001) (No. COA00-
408), – S.E.2d – (N.C. Nov. 5, 2001) (No. 321A01). At stake is the state’s ability to investigate reports of
possible child maltreatment and to rely on the professional discretion of trained social workers when doing
so. Parents, James and MaryAnn Stumbo (represented by the Home School Legal Defense Association)
who were the subjects of an investigation, asserted that to interview their children out of the parents’
presence constituted an “unreasonable seizure” and that such action was unconstitutional absent a judicially
authorized warrant based on probable cause.
The Stumbo case presents a different procedural scenario than that in the federal civil rights cases discussed
above. Unlike the federal cases, in Stumbo it was the protective services agency that filed suit to compel
the parents not to interfere with the child abuse investigation. In Stumbo, the child welfare agency was
actually prevented from taking action, whereas the other reported cases involved situations where the
government had acted and the parents were subsequently complaining of rights violations.
A bachelor’s level social worker responded to a report of possible neglect with a same-day visit to the
Stumbo home and was permitted to observe the children playing in their yard and to speak with both
parents and an attorney representing the parents, but was denied permission to interview the children
privately. When the family went inside without granting permission for the interviews, the social worker
left the premises.

The child welfare agency filed a petition with the juvenile court to prohibit the Stumbos from interfering
unlawfully with their investigation under a North Carolina statute, N.C.G.S. § 7B-302. The petition was
granted by the court and the Stumbos appealed. The Court of Appeals of North Carolina issued a 2-1
opinion on May 15, 2001 that affirmed the lower court’s order and found that Fourth Amendment
protections against unreasonable search and seizure did not apply to the case of a private child interview in
the family yard conducted for purposes of a neglect or abuse investigation.
Much attention was given in the Court of Appeals’ decision to the requirements of the North Carolina child
protection statute, N.C.G.S. § 7B-302 and 303, and to whether a search or seizure had occurred that would
trigger Fourth Amendment protections.
NASW’s Involvement and Relevance to Social Workers
At the request of the North Carolina Chapter, the NASW Legal Defense Fund provided financial support
for the preparation of an amicus curiae (friend of the court) brief on behalf of the social worker and the

social services department. In North Carolina the case is viewed as potentially affecting the health and
welfare of children as well as the ability of professional social worker to investigate cases of alleged abuse
and neglect quickly and efficiently. The Stumbo case was accepted for argument by the Supreme Court of
North Carolina on November 5, 2001. As of June 2003 a decision was still pending.
Conclusions
Affirmation of the Court of Appeals’ decision in Stumbo would maintain the current ability of DSS to
investigate claims of abuse and neglect thoroughly in order to determine whether further action was
required. If the North Carolina Supreme Court follows the reasoning of the intermediate appellate court’s
dissenting opinion, an additional step requiring legal proceedings may be required before social workers
are permitted to even begin a face-to-face investigation. While this will protect families from the risk of
improper intrusion, it may put children at great risk and diminish the effectiveness of child abuse and
neglect legislation.
Overall, the trend towards challenging the legality of warrantless child abuse investigations may discourage
social workers from entering child welfare positions and ultimately impede the protection of children.
With the federal circuit courts in disagreement this issue may be ripe for a decision from the U.S. Supreme
Court in the near future.
Related Web Links
Peter McLeod and Carolyn Polowy, Social Workers and Child Abuse Reporting: A Review of State
Mandatory Reporting Requirements, NASW, General Counsel Law Note (2000).
NASW, “Child Abuse and Neglect,” Social Work Speaks Abstracts.

i
Daryl H. v. Coler, 801 F.2d 893 (1986); Landstrom v. Ill. Dep’t of Children & Family Servs., 892 F.2d
670 (1990).
ii Wildauer v. Frederick County, 993 F.2d 369 (1993). iii Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087 (1989).
iv Calabretta v. Floyd, 189 F.3d 808 (1999). v Franz v. Lytle, 997 F.2d 784 (1993).
vi Tenenbaum v. Williams, 193 F.3d 581 (1999).
vii It should also be noted that the courts do not always clearly define the term “social worker” and in some
instances it may be applied inappropriately. In the instant case, the term “social worker” and “caseworker”
appeared to be used interchangeably.