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Drug Testing

Reply to: David Gordon c/o 3602 Wyneston Road Greenville, NC 27858 Tel: (252) 756-3454

September 12, 2003

Ms. Pheon E. Beal, Director Division of Social Services 325 North Salisbury Street Mail Service Center 2408 Raleigh, NC 27699-2408

Re: Advisory Opinion: Drug Testing by Social Workers; Child Protective Services

Dear Ms. Beal:

You have asked whether a social worker with a county department of social services conducting a child protective services (CPS) assessment can legally test or collect a urine sample from a parent or caretaker who consents and whose suspected drug abuse is a contributing factor in the case.

Unlike applicants for public assistance and social services where substance abuse screening may be quid pro quo for receiving benefits, a CPS assessment is a compelled invasion into a family’s privacy pursuant to state law. See N.C.G.S. §7B-302. See also Renn v. Garrison, 100 F.3d 344 at 349 (4th Cir. 1996). In addition, a urine screen during a CPS assessment is not used by a social worker merely to refer an individual for treatment, but is used punitively through a report to the court as a factor to be considered in determining whether a parent or caretaker’s children should be removed from the home.

We believe that the question you pose should be addressed in two parts. The first part of the question is whether a social worker conducting a CPS assessment can legally ask a parent or caretaker suspected of substance abuse to consent to a urine screen. If the answer to the first part of the question is yes, and the parent or caretaker voluntarily consents, the second part of the question is what procedures should a county department of social services follow in collecting or testing any urine sample.

With respect to the first part of your question, the Fourth Amendment, applied to the states through the Fourteenth Amendment’s Due Process Clause, provides that “the right of the Ms. Pheon E. Beal, Director September 12, 2003 Page 2

people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend IV. Under our jurisprudence, “searches conducted without a warrant are per se unreasonable under the Fourth Amendment subject only to a few ‘specifically established and well-delineated exceptions.’” Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003), quoting Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Furthermore, the U.S. Supreme Court considers urine screens taken by state agents as searches within the meaning of the Fourth Amendment. Chandler v. Miller, 520

U.S. 305, 137 L. Ed. 2d 513, 117 S. Ct. 1295 (1997).

However, one well-established exception to the warrant requirement of the Fourth Amendment is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Therefore, in our opinion, a social worker conducting a CPS assessment can legally ask a parent or caretaker suspected of substance abuse to consent to a urine screen. Please note that when the State attempts to justify a search on the basis of consent, the State must demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Id at 248. Thus, it is essential that when a social worker asks a parent or caretaker to submit to a urine screen during a CPS assessment, the social worker must express no punitive or negative consequences for a parent or caretaker’s refusal in order for that individual’s consent to be deemed truly voluntary. Statements a social worker should avoid include: “If you don’t agree to testing, I’ll have no choice but to remove your children”, or “you’ll have to send your children to live with a relative”, or “you’ll have to leave the home”, or “I’ll limit your visitation with your children”, or “I’ll treat your refusal as a positive test result”, etc.

With respect to the second part of your question, erroneous decisions regarding a CPS assessment can have significant consequences. For example, 42 U.S.C. § 1983 creates liability for any “person” who under color of state law deprives another person of a constitutional right. As to “persons” subject to monetary damages under § 1983, see Coleman v. N.J. Div. of Youth & Family Servs., 246 F. Supp. 2d 384 (2003); Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Walsh v. Erie County Dep’t of Job & Family Servs., 240 F. Supp. 2d 731 (N. Dist. Ohio 2003). See also, Gammons v. N.C. Dep’t of Human Resources, 344 N.C. 51, 472 S.E.2d 722 (1996) (county DSS directors and their staff are recognized as state agents in the delivery of CPS for the purposes of the Tort Claims Act). Thus, we recommend that procedures be put in place to ensure that any test results used by social workers in recommending or implementing child placement decisions are both valid and reliable. These procedures should be aimed at ensuring that urine samples are properly obtained, properly maintained and properly analyzed.

Ms. Pheon E. Beal, Director September 12, 2003 Page 3

We will be pleased to confer with you about specific procedures. Do not hesitate to contact us if we can be of such further assistance.

Very truly yours,

Ann Reed Senior Deputy Attorney General

David Gordon Assistant Attorney General