In re Stumbo, 321A01.

• Citation: 357 N.C. 279,582 S.E.2d 255
• Decision Date: 16 July 2003
• Docket Number: No. 321A01.,321A01.
• Court: United States State Supreme Court of North Carolina
• Parties: In the Matter of Joanie STUMBO, Steven Stumbo, Scott Stumbo, Unknown Stumbo.

582 S.E.2d 255

357 N.C. 279

In the Matter of Joanie STUMBO, Steven Stumbo, Scott Stumbo, Unknown Stumbo.

No. 321A01.

Supreme Court of North Carolina.

July 16, 2003.

John D. Church; and Yelton, Farfour, McCartney & Lutz, by Leslie Farfour Jr., Shelby, for petitioner-appellee Cleveland County Department of Social Services.

Stam, Fordham & Danchi, P.A., by Paul Stam; and Home School Legal Defense Association, by Michael P. Farris, pro hac vice; James R. Mason, pro hac vice; and Scott W. Somerville, pro hac vice, Apex, for respondent-appellants James and Mary Stumbo.

Smith Helms Mulliss & Moore, LLP, by Neil A. Riemann; and Seth H. Jaffe, Raleigh, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

Lewis, Goldberg & Ball, P.C., by Michael L. Goldberg, pro hac vice, and Michael D. Hutchinson, pro hac vice; National Association of Social Workers, by Carolyn I. Polowy, General Counsel, pro hac vice; and Council for Children, Inc., by Brett Loftis, McLean, VA, on behalf of the National Association of Social Workers and the National Association of Social Workers, North Carolina Chapter, amici curiae.

Roy Cooper, Attorney General, by R. Kirk Randleman, Assistant Attorney General, on behalf of the State of North Carolina, amicus curiae.

ORR, Justice.

This case arises out of an anonymous call to an unnamed caseworker in the Cleveland County Department of Social Services (CCDSS) during which the caller alleged that he or she had seen an unsupervised two-year-old child, naked in the driveway of a house. This information, along with the location of the home, was passed along to Tasha Lowery, an investigator with the CCDSS.

Approximately two hours later, Ms. Lowery investigated the anonymous report and was rebuffed by first the mother and then the father, Mary Ann and James Stumbo, in her attempt to talk in private with the child in question and with the child's siblings. As a result, CCDSS filed a "Petition to Prohibit Interference with or Obstruction of Child Protective Services Investigation" in the District Court, Cleveland County, pursuant to N.C.G.S. § 7B-303.

On 27 September 1999, a hearing was held on the petition, at which time both parents of the child and Ms. Lowery testified. The district court judge focused her inquiry exclusively on whether the parents had interfered with the investigation and concluded that the "parents of the minor children named in the petition obstructed or interfered with this investigation by refusing to allow Tasha Lowery as a representative of the Director of Social Services for Cleveland County[] to observe or interview the Juveniles in private without lawful excuse." The court then ordered the parents "to not obstruct, interfere with the investigation as set forth in [N.C.G.S. § ] 7B-303(a) and 7B-303(b)." The parents appealed to the Court of Appeals, which, in a divided decision, affirmed the trial court. The parents filed notice of appeal with this Court based upon the dissent and also based upon a constitutional question.

This Court is called upon to resolve and clarify the scope and authority under the pertinent statutes of a department of social services (DSS) to pursue this matter based upon the facts established by the record. Throughout the litigation of this case, the parents have cloaked their argument in the context of Fourth Amendment constitutional grounds.¹ As we have often noted, "the courts of this State will avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds." Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002). This is just such a case.

In examining the record before this Court, we find no direct evidence or record of the specific contents of the anonymous call made to the CCDSS. The only evidence is Ms. Lowery's testimony at the hearing as to what an unnamed caseworker told her:

Q. Now, directing your attention to the time or near the time that this petition for non-interference was taken out, did you have occasion, Ms. Lowery, to receive a report involving any of the children that you have now identified in your petition for a non-interference order as Jonie Stumbo,... ?

A. Yes.

Q. When was that?

A. September the 9th, 1999.

Q. What were you doing on September the 9th, 1999 when you received a report involving these children or how did you become involved with these children?

A. I was on what we call the emergency schedule, so I respond to any kind of immediate calls. I was on my way to follow up on additional report for my caseload when I was paged and given the information by a new caseworker.

Q. And what information did you receive?

A. The information I received that someone had saw a two-year old naked child in the driveway unsupervised.

Q. And did they give you a location or a general area where the child had been observed naked and unsupervised in the yard?

A. Yes.

Q. And what location were you given by the intake—

A. The indicator was on Wright Road in Kings Mountain. It was the last case on the right before you get to the subdivision on the left.

Q. The last case or the last house?

A. Last house.

The record does not reflect, nor did the testimony at the hearing provide, any further information about the facts of the incident that precipitated this litigation. There is no information either in the record or in the transcript of the hearing as to how long the child was outside unsupervised; the character of the surrounding area; or whether the child had ever been outside, naked and unsupervised before. Upon being called as a witness, James Stumbo attempted to explain what had happened, but the trial court sustained opposing counsel's objection to Mr. Stumbo's testimony. The trial court instructed Mr. Stumbo to confine his testimony to events that transpired at the time Ms. Lowery arrived at his home. All further evidence and the record before us relates solely to the effort by Ms. Lowery to interview the Stumbos' four children in private and the Stumbos' refusal to allow her to do so. Thus, without ever determining whether there was sufficient evidence of "neglect" to trigger the investigative requirements of N.C.G.S. § 7B-302, this case proceeded to a statutorily mandated investigation and legal measures to prohibit the parents' interference with an investigation by the CCDSS. The focus of all parties was on the Fourth Amendment right of the Stumbos to refuse to let Ms. Lowery in their house and/or to interview the children in private.

As explained in the case of In re Helms, "[t]he determination of neglect requires the application of the legal principles set forth in N.C. Gen.Stat. § 7A-517(21) [now N.C.G.S. § 7B-101(15)] and is therefore a conclusion of law." In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675-76 (1997). Thus, it is incumbent on the Court to determine whether, based on the evidence of record, the conduct complained of, if true, constituted neglect as envisioned by the General Assembly and as interpreted by the case law of this jurisdiction.

Before reviewing applicable case law on this question, we note that not every act of negligence on the part of parents or other care givers constitutes "neglect" under the law and results in a "neglected juvenile." Such a holding would subject every misstep by a care giver to the full impact of subchapter I of chapter 7B of the North Carolina General Statutes, resulting in mandatory investigations, N.C.G.S. § 7B-302 (2001); and the potential for petitions for removal of the child or children from their family for custodial purposes, N.C.G.S. ch. 7B, subch. I, art. 5 (2001); and/or ultimate termination of parental rights, N.C.G.S. ch. 7B, subch. I, art. 11 (2001).

A "neglected juvenile" is defined in part as one "who does not receive proper care, supervision, or discipline from the juvenile's parent ... or who lives in an environment injurious to the juvenile's welfare." N.C.G.S. § 7B-101(15) (2001). In order to adjudicate a juvenile neglected, our courts have additionally "required that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide `proper care, supervision, or discipline.'" In re Safriet, 112 N.C.App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (quoting former N.C.G.S. § 7A-517(21) (1989)), quoted in Helms, 127 N.C.App. at 511, 491 S.E.2d at 676.

Our review of the numerous cases where "neglect" or a "neglected juvenile" has been found shows that the conduct at issue constituted either severe or dangerous conduct or a pattern of conduct either causing injury or potentially causing injury to the juvenile. For example, in Powers, the Court of Appeals ultimately adjudicated four children neglected based on clear and convincing evidence of the mother's severe abuse of alcohol. Powers v. Powers, 130 N.C.App. 37, 502 S.E.2d 398,disc. rev. denied, 349 N.C. 530, 526 S.E.2d 180 (1998). The county DSS had received twenty-four reports about the care of the Powers children. Id. at 39, 502 S.E.2d at 400. DSS substantiated seven reports against the mother "based on her lack of supervision, alcoholism and emotional abuse or neglect." Id. During DSS' involvement, the mother was cited for driving while impaired on at least two occasions while her minor children were passengers. Id. at 39, 42, 502 S.E.2d at 399, 401. DSS reports showed that while at home the mother became substantially intoxicated and was unable to care for her younger children and that her alcohol abuse contributed to the emotional problems of her children. Id. at 43-44, 502 S.E.2d at 402.

In another child-neglect case, an elementary school principal reported to the county DSS that a five-year-old came to school with a bruise on her face and complained that her mother had been "digging into" her vagina with a washcloth during baths. In re Thompson, 64 N.C.App. 95, 96, 306 S.E.2d 792, 792 (1983). The trial...