DSS v. Parents - DSS almost always wins

When the South Carolina Department of Social Services investigates reports of child abuse, the assigned caseworkers will frequently interview children at their schools. Sometimes parents object. And sometimes schools allow DSS to interview the child anyway. Such was the case in May v. Dorchester School District Two, Op. No. 6053 (S.C. Ct. App. Filed March 13, 2024) (Howard Adv. Sh. No. 10 at 37), a recent opinion by the South Carolina Court of Appeals involving a tragic situation all too common in our society – children who are sexually abused by other children.

DSS procedures

DSS might have one of the most difficult missions of any state agency. Protecting abused and neglected children from the people who are supposed to love them is no simple task. Child abuse and neglect takes many forms and comes in many degrees of severity.

There are two basic categories of DSS cases – foster care and family preservation.

Foster care is when a child is placed in the legal custody of DSS. Usually this happens when a law enforcement officer or a family court judge determines that the child is in imminent and substantial danger and cannot be protected from that danger without being removed from the home. Family preservation cases typically involve situations where a child is temporarily placed in the care of a family member while DSS works to reunify the child with the parents. Foster care cases always result in family court involvement while many family preservation cases are resolved internally by DSS.

Both foster care and family preservation cases begin with a report of abuse or neglect to DSS. When a report is made, an investigation is triggered. The investigation is required by Section 63-7-920 of the South Carolina Code. DSS must determine whether a case should be “indicated” or “unfounded” within forty-five days from the date the report is received. DSS is allowed one fifteen-day extension upon a showing of “good cause.” A case is indicated by DSS when it determines that it is more likely than not that the child has been abused or neglected, i.e., a preponderance of the evidence supports the conclusion that the caregiver abused or neglected the child. If this preponderance standard is not met, the case is unfounded.

If a case is unfounded, DSS typically will have no further involvement with the family. If the case is indicated, DSS will usually offer services to the family or ask the parents to complete a treatment plan which might include things like parenting classes or substance abuse counseling depending on the nature of the underlying abuse.

May v. Dorchester School District Two

Background 

Kaci May and her husband had four biological children and adopted a sibling group of three children. At least one of the adopted children had “suffered severe sexual abuse while with their biological family.” May, Op. No. 6053 at 38. In March of 2017, May told the school that one of the children in her home had sexually abused another child in the home which the school reported to DSS, triggering an investigation.

During the investigation, May did not allow DSS to interview her children at her home but DSS was able to interview them at school. May did not object to the school interviews during the investigation period. Id. at 38-39. At the end of the investigation, DSS indicated the case against May for physical neglect and filed a case against her in family court. It’s unclear why DSS initially indicated the case, but they later dismissed the legal case and changed the finding against May to unfounded.

Before the family court case was dismissed, DSS remained involved with the May family. May refused to allow DSS to interview her children at her home at any point during the summer. When school started back up, May ordered the school not to allow DSS to interview her children without first contacting her or her lawyer. The school disregarded this instruction and allowed DSS to interview the children anyway. May then withdrew two of her children from their schools and enrolled them in a virtual charter school. May filed an action in circuit court seeking to enjoin DSS and the school from interviewing or facilitating interviews of her children at school. The circuit court denied her request and she appealed. Id. at 39-40.

Injunction and SC Statutes

An injunction is an equitable remedy and a party seeking an injunction must show three things to prevail: (1) irreparable harm; (2) likelihood of success on the merits; and (3) the absence of an adequate remedy at law.

The Court of Appeals found that May failed to show she would suffer irreparable harm without an injunction. The last time DSS interviewed any of her children was one month prior to her filing her lawsuit and there was no evidence that DSS had plans to interview her children going forward. There was no evidence that the children were harmed by DSS interviewing them and there was a need for DSS to conduct the interviews because of the serious allegations of sexual violence in the home. Id. at 41-42. The Court also concluded that May wasn't likely to succeed on the merits because DSS is specifically authorized by section 63-7-920 (C) of the South Carolina Code to interview children at school as part of their investigation and the statute allows those interviews to be conducted outside the presence of the parents. May, Op. No. 6053 at 42-43.

May argued that the probable cause standard in section 63-7-920 (B) applies to the interviews conducted pursuant to 63-7-920 (C) and that the interviews of her children violated the Fourth Amendment to the United States Constitution which protects people from unreasonable searches and seizures by government agents. Subsection (B) authorizes DSS to get what’s known as an “inspection warrant” during the pendency of a DSS investigation. To get an inspection warrant, DSS has to show that there is probable cause that child abuse or neglect has occurred and that they cannot complete the required investigation without obtaining a warrant. One reason DSS might seek an inspection warrant is when a family refuses to allow DSS inside the home to assess the safety of the children. In reading the plain language of subsections (B) and (C), the Court concluded that the provisions simply deal with different situations and that there is no probable cause or warrant requirement before DSS can interview children at school. May, Op. No. 6053 at 44.

Fourth Amendment

The real meat of this case is the Fourth Amendment question because a statute cannot authorize the government to do something that violates the Constitution. The Court of Appeals gave relatively short shrift to May’s contention that her children were illegally seized in violation of the Fourth Amendment when they were called from class and questioned by DSS caseworkers. The Court called this argument “meritless” and noted that there is no case in which the South Carolina Supreme Court has held such an interview violated the Fourth Amendment. Id. at 45. While it might be true that the South Carolina Supreme Court has not specifically addressed this question, a very brief google search turns up several federal circuit court opinions that have held exactly that. And while these cases might ultimately not have affected the outcome of May's case, they certainly warrant serious consideration.

Take a look at Doe v. Heck, 327 F.3d 492, 510-513 (7th Cir. 2003), for instance, where the Seventh Circuit Court of Appeals held that a DSS caseworker’s in-school interview of a child during an investigation of alleged child abuse without a warrant was an illegal and unconstitutional search and seizure. Or Jones v. Hunt, 410 F.3d 1221, 1229 (10th Cir. 2005), where the Tenth Circuit found that removing a sixteen-year-old girl from school and taking her to the police station where she was interviewed by DSS about allegations that she was being abused by her parents was an unconstitutional seizure in violation of the Fourth Amendment.

The Sixth Circuit Court of Appeals also recently addressed this issue in Schulkers v. Kammer, 955 F.3d 520 (6th Cir. 2020). Like its sister circuits, the Sixth Circuit concluded that DSS violated the Fourth Amendment when they conducted in-school interviews of children who were allegedly being abused without first obtaining a warrant or showing that they fell within an exception to the warrant requirement. Schulkers, 955 F.3d at 538. And finally, while the South Carolina Court of Appeals at least acknowledged the US Supreme Court’s punting on this issue in Camreta v. Greene, 563 U.S. 692 (2011), the Court of Appeals did not mention the fact that the Camreta case originated in the Ninth Circuit which had held, consistently with the other circuit courts, that DSS had violated the United States Constitution by interviewing children in school during the pendency of a child abuse investigation without a warrant. Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009), vacated as moot 563 U.S. 692 (2011).

It can hardly be said that this argument is meritless when the four circuit courts of appeals that have addressed the issue of warrantless in-school interviews of children by DSS caseworkers have all concluded that the interviews violated the Fourth Amendment. There is of course a strong governmental interest in investigating allegations of child abuse. But there are also strong interests in protecting children from unreasonable searches and seizures and in allowing parents to direct the upbringing of their children. It is a difficult and delicate question, but it is a question that has to be answered.

Conclusion

It's hard to imagine raising a child who has been sexually abused or who is a sexual abuser. Children who have been forcibly removed from their biological family after being sexually abused are likely to experience a tremendous amount of emotional stress and will probably experience a lifetime of pain and suffering. Adopting such a child is an incredible undertaking and people who take that step do a great service to the child and to society at large.

Underlying this entire case appears to be a parent who was trying to avoid having her children retraumatized by being repeatedly asked about their experiences with sexual violence, whether as a victim, perpetrator, or witness. Sometimes kids just aren’t ready to talk about what they’ve experienced. And a stranger from DSS showing up at their school to question them about the time their brother raped them probably will not be a pleasant experience.

It’s not obvious to me that a government agent questioning a child at school over a parent’s objection doesn’t violate the Fourth Amendment – especially in light of the four circuit court opinions holding that it does. There may be real dangers that imposing these interviews on children may do more harm than good under certain circumstances. I suspect that there is much left to be said in developing this area of the law and hopefully next time the Supreme Court of the United States won’t punt.

adam@ruffinappeals.com

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Columbia, SC 29201