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." 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.

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."

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.