In re W.B.M.
The pivotal issue raised by this appeal is whether the statutory procedures for placing an individual’s name on the Responsible Individual’s List under Articles 3 and 3A of the North Carolina Juvenile Code violate the individual’s procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. For the reasons stated below, we conclude that, at a minimum, the challenged statutory procedures violate an individual’s due process rights under Article I, Section 19 of the North Carolina Constitution.
I. Statutory Scheme
Petitioner challenges the State’s procedures for placing the names of individuals who have allegedly abused or neglected children on the Responsible Individuals List (“RIL”). As this is an issue of first impression before this Court, a full explanation of the statutory scheme governing the RIL is essential for an understanding of this case.
A. The Responsible Individuals List
Chapter 7B, Division 01, Article 3 of the North Carolina General Statutes governs the screening and assessment of abuse and neglect reports of children, and the process by which substantiated reports may be reviewed.
The RIL procedures are triggered by reports of suspected child maltreatment made to the department of social services.
Within five working days of completing an investigative assessment response that results in a determination of abuse or serious neglect, the director must notify DHHS of the results of the assessment and must give personal written notice to the individual deemed responsible for the abuse or serious neglect.
(1) A statement informing the individual of the nature of the investigative assessment response and whether the director determined abuse or serious neglect or both.
(2) A statement summarizing the substantial evidence supporting the director’s determination without idеntifying the reporter or collateral contacts.
(3) A statement .informing the individual that the individual’s name has been placed on the responsible individuals list as provided in [N.C. Gen. Stat. §] 7B-311____
(4) A clear description of the actions the individual must take to have his or her name removed from the responsible individuals list. . . .
C. Procedures for Removal from the RIL
1. Review by the Director
“An individual who has been identified as a responsible individual as the result of an investigative assessment response may, within 30 days after receipt of the notice under [N.C. Gen. Stat. §] 7B-320(c), request that the director who determined the abuse or serious neglect and identified the individual as a responsible individual expunge the individual’s name from the responsible individuals list.”
2. Review by the District Attorney
Within 30 days of receiving a request to review, the district attorney shall review the director’s decision to refuse to expunge the individual’s name from the responsible individuals list and make a determination of agreement or disagreement with the director
If the district attorney determines there is “not substantial evidence to support a determination of abuse or serious neglect and to support the identification of an individual as a responsible individual,” the individual’s name must be expunged from the RIL.
3. Review by the District Court
“Within 30 days of the receipt of notice of the director’s decision under [N.C. Gen. Stat. §] 7B-321(b) or (c), or within 30 days from the date of a determination by the district attorney under [N.C. Gen. Stat. §] 7B-322, whichever is later, an individual may file a petition for expunction with the district court of the county in which the abuse or serious neglect report arose.”
“Within 30 days after completion of the hearing, the court shall enter a signed, written order containing findings of fact and conclusions of law.”
“Notwithstanding any time limitations contained in this section or the provisions of [N.C. Gen.'Stat. §] 7B-324(a)(3) or (4), a district court may review a determination of abuse or serious neglect at any time if the review serves the interests of justice or for extraordinary circumstances.”
4. Review by the Appellate Court
Either party may appeal the district court’s decision to the Court of Appeals.
D. Individuals Ineligible to Request Expunction
An individual whose name has been placed on the RIL may not challenge that placement if any of the following apply:
(1) The individual is criminally convicted as a result of the same incident. . . .
(2) The individual is a respondent in a juvenile court proceeding regarding abuse or neglect resulting from the same incident. . . .
(3) That individual fails to make a timely request for expunction with the director who made the determination ....
(4) That individual fails to file a petition for expunction with the district court in a timely manner.
(5) That individual fails to keep thе county department of social services informed of the individual’s current address during any request for expunction ....
The statutory scheme is silent as to how long an individual’s name remains on the RIL if the individual does not request an expunction, is denied an expunction, or is ineligible to request an expunction.
II. Factual Background and Procedural History in the Present Case
Petitioner is the biological father of the minor child W.B.M. (“the child”). Petitioner is not married to the child’s mother (“the mother”) and has secondary custody of the child with visitation on Tuesdays, Thursdays, and every other weekend. Petitioner and the mother have a cordial relationship and by
The mother testifiеd that around June of 2006, the child started to exhibit troublesome behaviors. On at least two different occasions, the mother witnessed the child trying to insert his fingers into his rectum. When she asked him why he was doing that, he said because he “ ‘had to do this’ ” and that “ ‘this is what Kelly do to me[.]’ ” The mother spoke with the child’s pediatric nurse who advised her to make a report with the department of social services. Also around that time, the child started not wanting to go with strangers, started displaying angry behavior, wouldn’t go to the bathroom at daycare, and started masturbating.
The mother made a report to the New Hanover County Department of Social Services (“DSS”). Ruth Massey, an investigator with DSS, interviewed the mother. She then took the mother and the child to the Brunswick County Sheriff’s Department to be interviewed. Detective Simpson of the Sheriff’s Department conducted the interview with the child, which was videotaped, and Ms. Massey observed the interview from another room. The child’s statements during the interview “mirrored” his statements to his mother.
After the interview, Detective Simpson had the mother call Petitioner on the telephone “to try and get any information” from him about the child’s behaviors and allegations. Detective Simpson advised the mother to tell Petitioner that there was an investigation and that the sheriff’s department needed to speak with him. During that phone call, Petitioner denied any wrongdoing.
On 29 September 2006, the child was given a physical examination by Dr. Archer at the Children’s Clinic. No physical signs of abuse were found. On 5 October 2006, the child was taken for a second physical examination at the Carousel Center. Beth Deaton, P.A., attempted to examine the child, who did not want to participate in the examination.
After the child had been interviewed and physically examined, Ms. Massey contacted Petitioner and asked him to come in for an interview. Ms. Massey interviewed Petitioner on 6 October 2006 for “approximately a half-hour, 45 minutes, roughly.” Petitioner denied any wrongdoing and could not think of any reason the child would make such statements about him. He did voice his concern regarding the mother’s boyfriend because the boyfriend had an extensive criminal history. Ms. Massey asked Petitioner to voluntarily suspend his visitаtion with the child during the investigation or she would get a court order suspending it. Petitioner agreed to voluntarily suspend visitation with his son.
Petitioner called Ms. Massey several times after the interview to inquire when Detective Simpson was going to contact him and interview him. Detective Simpson never interviewed him and there was no further investigation into the matter.
Ms. Massey’s next face-to-face contact with Petitioner was on 12 January 2007, when she informed him that the allegations of sexual abuse had been substantiated, that he was being placed on the RIL, and that the case was being closed. DSS did not enter into a case plan with Petitioner as he lived in Brunswick County and did not enter into a case plan with the mother as she had moved to Bladen County.
DSS followed up with the mother and requested that she continue to provide protection for the child by not allowing Petitioner any contact with the child. DSS also asked Petitioner to seek “sex offender-specific treatment counseling” and informed him that if a counselor made contact with DSS and informed them that there was no risk to the child, Petitioner would be allowed contact with his son at that time. DSS also sent a letter to Terry McCoy, a social worker with the Bladen County Department of Social Services, advising her that sexual abuse had been substantiated but that DSS had closed the case as the mother had moved, and further advising her that Petitioner was to have no contact with the child unless the above-stated conditions had been met.
Within 30 days of being notified of his placement on the RIL, Petitioner requested that the DSS Director review that decision. On 27 February 2007, the DSS Director notified
Petitioner timely requested that the District Attorney’s office review the decision of the DSS Director. On 24 May 2007, New Hanover County Assistant District Attorney Connie Jordan notified Petitioner that she was upholding the DSS Director’s decision to keep Petitioner on the RIL.
On 21 June 2007, Petitioner filed a Petition for Expunction from the RIL in New Hanover County District Court. After a hearing on 23 August and 12 September 2007, Judge Corpening denied Petitioner’s expunction request and ordered DSS attorney Dean Hollandsworth to preрare an order with detailed findings of fact.
Although
On 7 July 2008, Petitioner filed a Motion to Remove Kelly Holt’s Name from the Responsible Individual’s List, alleging, inter alia, that
III. Discussion
A. Preservation of Constitutional Challenge
We first address the State’s argument that Petitioner failed to raise any constitutional challenge to the RIL procedures while he “exercised the process of expunction of his name from the RIL” and, thus, Petitioner is barred from now raising a constitutional challenge on appeal. We disagree.
In Petitioner’s Motion to Remove Kelly Holt’s Name from the Responsible Individual’s List, filed 7 July 2008, Petitioner alleged as follows:
9. ThatNorth Carolina General Statute § 7B-323 is unconstitutional on its face because the listing of Petitioner’s name on said list without a prior hearing constitutes a violation of the Petitioner’s procedural due process rights under the 5th and 14th amendments to the United States Constitution and similar provisions of the North Carolina Constitution.
10. ThatNorth Carolina General Statute § 7B-323 is unconstitutional on its face because the burden of proof. . . fails to satisfy the minimum requirements of due process.
These allegations in Petitioner’s motion are sufficient to preserve the issue for our review.
B. Due Process Challenge
Petitioner argues that the statutory procedures for placing an individual on the RIL are unconstitutional on their face as they violate the individual’s procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the North Carolina Constitution.
“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully....” United States v. Salerno,
The Due Process Clause of the Fifth Amendment to the United States Constitution
Procedural due process protection ensures that government action depriving a person of life, liberty, or property is implemented in a fair manner. State v. Thompson,
Under both our federal and state constitutions, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable valuе, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews,
Applying these principles to the present case, this Court must first decide whether an individual has a protected liberty or property interest in not being listed on the RIL. If so, then this Court must determine whether the present statutory scheme provides individuals with sufficient notice and an opportunity to be heard at a meaningful time and in a meaningful manner. If the process is inadequate, this Court must determine what alternative or additional protections are necessary to satisfy due process.
1. Constitutionally Protected Interest
Article I, Section 1 of the Nоrth Carolina Constitution declares that “[w]e hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”
[t]hese fundamental guaranties are very broad in scope, and are intended to secure to each person subject to the jurisdiction of the State extensive individual rights, including that of personal liberty. The term “liberty,” as used in these constitutional provisions . . . includes the right of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; [and] to pursue any livelihood or vocation....
Ballance,
Thus, plаcement on the RIL carries consequences that are serious to the accused individual. Those consequences flow in part from the personal stigma undoubtably attached to the accused individual by persons acquiring the individual’s name from the list, even if such acquisition is “exclusively” for a determination of the individual’s “employability or fitness to care for or adopt children.” Id. The consequences also flow from the actions of the designated agencies that may penalize the individual on the basis of his or her inclusion on the RIL. An individual who is branded as a “child abuser” as a result of his or her inclusion on the RIL is “maimed and crippled. The injury is real, immediate, and incalculable.” Joint Anti-Fascist Refugee Comm. v. McGrath,
We conclude that inclusion on the RIL deprives an individual of the liberty interests guaranteed under our State Constitution by inhibiting the individual from using his faculties to adopt, foster, and care for children, earning his livelihood in the childcare field, or pursuing or securing employment in the childcare field.
2. Procedures Used
Because an individual’s liberty interests are adversely affected by virtue of being listed on the RIL, this Court must balance the Mathews factors to determine whether the statutory procedures adequately protect the individual’s interests. We first address the factors relating to the personal and government interests involved, and then analyze the risk of еrror created by the procedures established by the State.
a. Private Interest
As discussed above, the private interest affected by inclusion on the RIL is an individual’s liberty: that is, the individual’s liberty to be free to use his faculties to adopt, foster, and care for children, to earn his livelihood in the childcare field, and to pursue a career in the childcare profession.
b. Countervailing State Interest
On the other hand, the State has an undeniably vital interest in protecting children from abuse and neglect. See Santosky v. Kramer,
c. Risk of Erroneous Deprivation
Petitioner argues that the statutory procedures are constitutionally infirm because they permit an individual’s name to be listed
It is a well-settled principle that if the State feasibly can provide a hearing before depriving an individual of a protected interest, it generally must do so in order to minimize “substantively unfair or mistaken deprivations^]” Fuentes v. Shevin,
Here, the RIL procedures are triggered by a report of suspected child maltreatment made to the department of social services.
Because there is no case law in North Carolina controlling our analysis of the issues raised by this appeal, we will look to other jurisdictions for guidance. While we are not bound by the decisions of courts in those jurisdictions, we find their reasoning to be instructive in this case and conclude that the DSS investigation alone is plainly insufficient to support the loss of liberty that accompanies listing on the RIL. See Jamison v. Dep’t of Soc. Servs., Div. of Family Servs., 218 S.W.3d 399, 408 (Mo. 2007) (“The investigation alone, even after review by the local director, is plainly insufficient to support the loss of liberty that accompanies listing in the Central Registry.”
Furthermore, “[t]he length and consequent severity of a deprivation are considered in determining what procedural protections
The failure to provide a pre-deprivation hearing is acceptable .only if (1) a pre-deprivation hearing would be “unduly burdensome in proportion to the liberty interest at stake,” (2) the State is unable to anticipate the deprivation, or (3) an emergency requires immediate action. Zinermon v. Burch,
Nonetheless, the State argues that a post-deprivation hearing is sufficient to satisfy due process because
the actionable private interest, if any exists in this case, is far outweighed by the [S]tate’s interest in keeping pedophiles, violent abusive persons and other individuals capable of serious harm to children out of employment that would give them an avenue to perpetrate more harm on the [S]tate’s most vulnerable population.
While it is uncontested that protecting children from abuse and neglect is a significant State interest, this goal “can be fulfilled by means other than depriving individuals of substantial liberty interests without a prior opportunity to be heard.” Jamison,
3. Burden of Proof
The next question is what standard of proof the State must meet at a pre-deprivation hearing to satisfy the minimum requirements of due process.
We conclude that due process requires the State to substantiate a report of child abuse or neglect by a preponderance of the evidence before an individual’s name can be included in and disseminated from the RIL. See Jamison,
Currently, at the district court hearing provided under
While the statute correctly identifies the burden of proof required at the hearing as a preponderance of the evidence, the statute incorrectly identifies the fact thаt must be proven by a preponderance of the evidence as “the correctness of the director’s decision[,]” id., instead of whether the accused individual perpetrated abuse or serious neglect of a juvenile. Indeed, as argued by Petitioner, the statute only allows the judge to review the reports and records accumulated during the initial investigation to determine if the department of social services “came up with enough” to justify its decision. Such limited review violates an individual’s right to be heard “in a meaningful manner],]” Mathews,
In order to satisfy due process, we hold that at the constitutionally necessary pre-deprivation hearing in the district court, the director shall have the burden of proving abuse or serious neglect and identifying the responsible individual by a preponderance of the evidence.
C. Untimely Order
Finally, Petitioner argues that the trial court erred in failing to remove his name from the RIL because the written order from the hearing on Petitioner’s petition for expunction was entered outside of the statutory 30-day time limit.
Accordingly, while we disapprove of the inordinate delay in entry of the written order, we conclude that Petitioner was not entitled to have his name removed from the RIL based on the untimeliness of the district court’s order. Petitioner’s argument is overruled.
III. Conclusion
It has long been recognized that “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.” Joint Anti-Fascist Refugee Comm.,
REVERSED.
Notes
. The Central Registry is a statewide registry maintained by the Family Support and Children’s Division (“the division”) of Missouri’s Department of Social Services.
. In an invеstigation into a report of abuse or neglect, the director of social services shall conduct “a face-to-face interview with the alleged perpetrator or perpetrators unless there is documentation [in the case record] to explain why such an interview was not conducted.” 10A N.C. Admin. Code 70A.0106(f) (2007).
. Moreover, “[wjithin 30 days after completion of the hearing, the court shall enter a signed, written order containing findings of fact and conclusions of law.”