Renn Ex Rel. Renn v. Garrison

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REBECCA COURTNEY RENN, by and

through her Guardians at Law;

MICHAEL RENN, individually and as

Guardian at Law of Rebecca Courtney

Renn; REBECCA RENN, individually

and as Guardian at Law of

Rebecca Courtney Renn,

Plaintiffs-Appellees,

v.

EDWARD GARRISON, Director of the

No. 95-1321

Pitt County Department of Social

Services, individually and in his

official capacity; PITT COUNTY

DEPARTMENT OF SOCIAL SERVICES,

individually and in its official

capacity; PETER SWORD, individually

and in his official capacity; MELANIE

KEE, individually and in her official

capacity; PHYLLIS THOMAS, individually

and in her official capacity,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Malcolm J. Howard, District Judge.

(CA-93-151-4-H)

Argued: September 25, 1995

Decided: November 12, 1996

Before WIDENER and LUTTIG, Circuit Judges, and

BEATY, United States District Judge for the

Middle District of North Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge Widener wrote

the opinion, in which Judge Luttig and Judge Beaty joined.

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COUNSEL

ARGUED: Kenneth Ray Wooten, WARD & SMITH, P.A., New

Bern, North Carolina, for Appellants. Jeffery Benton Foster, FOSTER

& BRADSHER, Greenville, South Carolina, for Appellees. ON

BRIEF: Cheryl A. Marteney, WARD & SMITH, P.A., New Bern,

North Carolina, for Appellants. Wallace W. Bradsher, Jr., Tina L.

Fisher, FOSTER & BRADSHER, Greenville, South Carolina, for

Appellees.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

Defendants-Appellants Pitt County, North Carolina Department of

Social Services (DSS), Edward Garrison, the director of the DSS, and

three DSS social workers, Peter Sword, Melanie Kee, and Phyllis

Thomas, appeal the denial of their claims of qualified and absolute

immunity, of their motion for a protective order, and to stay all mat-

ters relating to discovery. Plaintiffs are Michael and Rebecca Renn,

husband and wife, of Greenville, N.C., and their minor daughter,

Rebecca Courtney Renn. Plaintiffs allege defendants deprived them

of their constitutional right of family privacy in violation of 42 U.S.C.

§ 1983 and committed various state torts including negligence, sexual

harassment, malicious prosecution, and assault. The district court

reached only the issue of qualified immunity and denied defendants'

motion to stay discovery on that point. We reverse the decision of the

district court denying qualified immunity to the individual defendants

and remand the case for further proceedings.

As alleged in plaintiffs' amended complaint, the events leading to

this suit began in December, 1992. Plaintiffs Michael and Rebecca

Renn had been experiencing problems in discipline and in communi-

cating with their teenage daughter, Rebecca Courtney Renn, and had

2

engaged Dr. Sam Williams, a psychologist, to assist them. Because of

the problems, the Renns sent Courtney to her grandparents over

Christmas of 1992. On December 28, 1992, after returning home, the

child had a quarrel with her mother, took some clothes, and ran away

to the house of Sylvia Measamer, a neighbor. She returned home on

December 30th and January 3rd, but left again each time.

On January 5, 1993, defendant Peter Sword, an intake counselor at

the Department of Social Services, called the Renns, saying the

department had received a call about the child and that he needed to

meet with them. A day or two later, the Renns met Sword at Dr. Wil-

liams' office and learned that Sylvia Measamer had filed charges of

neglect against them, and that Sword had spoken to several people to

investigate the child's home situation. Sword explained that he could

not find any substantiation for the neglect charges, and that the signif-

icant inconsistencies in the stories he had been given caused him to

conclude that he had "been lied to by some people." Sword said that

Sylvia Measamer had been dissatisfied with his inability to substanti-

ate neglect and had gone over his head to his supervisor, creating "a

stir at the Department of Social Services."

Measamer refused to allow Courtney to go home to her parents

unless DSS personnel were present, so on January 7, 1993, Sword

accompanied Renn to pick up the child. Upon arriving home, the

Renns told their daughter that they had decided to commit her to

Coastal Plains Hospital for treatment. While Sword was still at the

Renns' home, Courtney ran away to other neighbors, Barbara and

Harry Sloan. Sword himself called the Sloans but could not persuade

Sloan to return the child. Sword called the Greenville Police Depart-

ment and retrieved Courtney from the Sloans' with the help of a

police officer and Renn. Sword and the Renns then obtained involun-

tary commitment papers from the Pitt County Magistrate and took the

child to Coastal Plains Hospital.

Plaintiffs allege that while at the magistrate's office and in the hos-

pital waiting room, Sword displayed what Mrs. Renn interpreted as

an inappropriate level of interest in her.1 Despite this allegation, over

_________________________________________________________________

1 Plaintiffs allege that while at the magistrate's office, Sword appeared

fascinated with Mrs. Renn and would not leave her side. On that and a

3

the ensuing eight months Sword did not initiate any contact with the

Renns until a second incident occurred involving the child. He did,

however, leave the neglect investigation open against them.

After Coastal Plains Hospital, Courtney was sent to a wilderness

camp in Idaho for three weeks and then enrolled in a private school

in Virginia. The school expelled her for disciplinary reasons on May

11, 1993. On May 14, 1993, she ran away to the Sloans' where she

stayed until at least June 11, 1993. During the summer of 1993 the

child also spent nights away from home at the apartment of a Mrs.

Tyndall.

The Renns initiated the only contacts with DSS or Sword that took

place between January and September, 1993. On June 11, 1993, they

wrote to Sword complaining that the adults in their neighborhood

were undermining their attempt to discipline the child by allowing her

to run to them when she did not get her way at home. They told

Sword that they were "seeking alternative methods in dealing with

their child." Sword replied by letter on July 1, 1993, advising the

Renns that he had no authority to "have impact" with the neighbors

and suggesting they try alternative placement programs until they "got

it right." On August 3, 1993, Mrs. Renn telephoned Sword to ask if

he had completed investigating the neglect charge raised in January

and informed him that Dr. Williams recommended enrolling Courtney

in a facility called Three Springs in Pittsboro, N.C. Mrs. Renn also

told Sword that she was afraid of her daughter because the child was

becoming violent. Sword told Mrs. Renn he had left the investigation

open. About August 5, 1993 Courtney hit her mother, bruising her

arm. On Dr. Williams' advice, the Renns filed juvenile criminal

charges against her. On August 5, 1993, Courtney ran away to the

Tyndall apartment. Mrs. Renn wrote Sword a letter to inform him of

these events. We are told by the Renns that they also requested that

DSS workers attend counseling sessions with them and Dr. Williams.

In September when school started, Courtney skipped class, failed

to complete assignments, and lied about notes to her parents sent

_________________________________________________________________

few other occasions, Renn has alleged that Sword was unduly familiar

with Mrs. Renn, his behavior constituting what might be called a pass at

her as commonly understood. This does not state a federal question cause

of action, however.

4

home by her teachers. Trouble happened over the weekend of Sep-

tember 11-12, 1993. It appears that on Saturday, September 11, 1993,

Courtney left home before her parents returned from work. She left

a note and called home, but stayed out until 12:30. Late Sunday eve-

ning, September 12, 1993, Renn received a phone call from a mother

who claimed that Courtney had harassed her daughter. Renn con-

fronted his daughter and an argument broke out. Courtney threw a

tantrum and, cursing, attacked her father, who physically restrained

her until she calmed down. When Renn left his daughter's room, she

ran away.

The Renns called the police to pick Courtney up. They believed she

was headed for the Tyndall apartment and the police found her there

about two hours later. Courtney told the police her father had beaten

her, and defendant Phyllis Thomas, a DSS case worker on duty that

evening, became involved. Thomas phoned the Renns, telling them

she intended to allow the child to remain at the Tyndall's for the

night. Renn objected because he believed Mrs. Tyndall was emotion-

ally disturbed and did not have custody of her own children. He

explained that Courtney was under a psychologist's care and had a

history of disciplinary problems that would be exacerbated by reward-

ing her rebellious behavior. Renn asked Miss Thomas to call Sword

at home, or to call Connie Elkes, a police juvenile officer familiar

with both the child and Mrs. Tyndall. Miss Thomas refused, citing

DSS policy, but she called back at approximately 3:00 a.m. to tell the

Renns that Courtney had been placed in a foster home and would see

her parents in court in five days. To place Courtney in a foster home,

DSS, acting through Miss Thomas, assumed emergency custody of

the child. Courtney recanted her story about being beaten when she

found out that she would not be allowed to stay at Mrs. Tyndall's.

On Monday, September 13, 1993, Renn called defendant Sword at

DSS. Sword told Mr. Renn that his daughter had been dropped off at

school that morning but by 8:00 a.m. had left in the company of Shan-

non Tyndall and another girl. Sword instructed Renn to leave Court-

ney's bedroom undisturbed after the previous night's ruckus, though

he never came to look at it. Also that day, DSS filed a juvenile peti-

tion in state court to take temporary control of the child. The Renns

called Sword at home at 9:30 that evening but their daughter had still

not been located.

5

On Tuesday, September 14, 1993, Sword called Mrs. Renn and

gave her the location of a neighborhood where the police, through a

phone trace, thought the child might be. Sword told Mrs. Renn that

the child had pawned a ring and offered to recover it. He also said that

the agency's attorney had recommended that DSS surrender custody

of the child but that he, Sword, told the attorney that the Renns

wanted DSS to keep custody. Plaintiffs claim that Sword knew that

they did not want DSS to retain custody and that his assertion to the

agency attorney was false. Mrs. Renn and her father drove around the

neighborhood until they spotted Courtney. The police and a social

worker recovered the child the next day, September 15, 1993, and

returned her to the foster home.

On September 15, 16, and 17, 1993, Sword telephoned the Renns

to discuss the child's condition and possible placement options. He

told them he wished to accompany them, and bring Courtney, to an

interview the Renns had scheduled at the Three Springs facility on

September 20, 1993.

Hearings with respect to Courtney's custody were held on Septem-

ber 15, 22, and 29, 1993. On September 29, 1993, the parties agreed

that DSS would retain custody until Courtney was placed in Three

Springs on October 4, 1993, but that the Renns could take her to the

facility without being accompanied by a social worker. DSS dis-

missed the neglect petition and, on condition that it could verify the

child's placement at Three Springs, agreed to dissolve custody as of

October 6, 1993. The Renns signed a release allowing the DSS to call

Three Springs through October 6, 1993. The state judge, apparently

orally, instructed DSS not to interfere with the child's placement or

to contact the child unless necessary.

On October 7, 1993, the Renns received notice that the agency

could not substantiate the January 3, 1993 neglect referral. DSS gave

no reason for the length of the investigation. On October 9, 1993, the

Renns received a letter from Sword stating that DSS had substantiated

a finding of "neglect for lack of proper discipline" as a result of an

incident reported on September 13, 1993. The letter also said the case

would be transferred to the family children's services unit and a new

social worker would be assigned.

6

On October 22, 1993, defendant Melanie Kee, a DSS employee,

called Three Springs to obtain information about the child. She stated,

the Renns claim falsely, that she had a signed release from the Renns

authorizing her to obtain information, that DSS had substantiated

neglect against the Renns because they locked their daughter out of

the house in January, 1993, and that DSS had remained involved in

the case because of concerns for the child's safety if she returned

home to her parents. Kee also contacted the Renn's attorney and Dr.

Williams, attempting to obtain information.

Plaintiffs filed this suit on November 18, 1993 and filed an

amended complaint on December 6, 1993. On November 24, 1993,

DSS filed a juvenile petition to prevent obstruction or interference

with investigation pursuant to N.C.G.S. § 7A-544.1. The obstruction

petition was resolved by the entry of a consent order in state court that

required plaintiffs to provide DSS with specific information but did

not address the merits of this action. The parties agreed in the district

court that the suit presented the following federal claims by the

Renns, as summarized by the district court in its order filed January

20, 1995:

(1) that defendants Kee and Sword deprived the plaintiff

parents of their constitutional right to maintain control over,

and the integrity of, their family unit, in violation of 42

U.S.C. § 1983;

(2) that DSS had in place policies promoting the depriva-

tions, thereby subjecting DSS to liability under§ 1983 as

well;

(3) that the individual defendants are liable in their official

capacities;

(4) that the substantiation process violates the Fourteenth

Amendment . . .

(5) that the defendant Thomas took custody of the minor

child . . . without the consent of the plaintiff parents or a

court order; and

7

(6) that DSS has threatened to sue the plaintiffs if they do

not release their medical records, thereby violating plain-

tiffs' constitutional right to privacy.

On April 28, 1994, defendants had moved for a protective order and

to stay discovery on all matters pending the court's decision on a

summary judgment motion which Defendants filed on July 22, 1994.

In addition to qualified immunity, defendants' summary judgment

motion asserted absolute immunity, Eleventh Amendment immunity,

and public officials immunity. By order filed January 20, 1995, the

court denied defendants' motion to stay discovery and lifted its earlier

stay. The court held that plaintiffs' rights to family privacy were

clearly established and that genuine issues of material fact existed

concerning the reasonableness of the defendants' conduct that justi-

fied discovery on the issue of qualified immunity. It denied the indi-

vidual defendants' motion for summary judgment which claimed

qualified immunity.2 It did not otherwise rule on defendants' sum-

mary judgment motion.

The only issue we consider is whether the district court correctly

determined that the individual defendants are not entitled to qualified

immunity. "[A] district court's denial of a claim of qualified immu-

nity . . . is an appealable final decision within the meaning of 28

_________________________________________________________________

2 The parties have treated the defendant's motion for summary judg-

ment as denied. Appellants' brief at p.1, Appellees' brief at p.2, 30. They

have argued on appeal the availability of the defense of qualified immu-

nity.

We think the position in which the parties find themselves is not dif-

ferent from the position of the parties in the case of Cedar Coal v. United

Mine Workers of America, 560 F.2d 1153, 1161-1162 (4th Cir. 1977). In

Cedar Coal, a motion for a preliminary injunction had not been acted

upon but had been continued by the district court"until the further order

of the court." We treated that state of facts as a denial of the motion. The

situation of the appellants is not different here. Their motion for sum-

mary judgment was filed and action on the same was deferred, although

the court filed its opinion denying them qualified immunity. We think

their position is not substantially different from that of the appellants in

Cedar Coal, and we will proceed to the availability of the defense of

qualified immunity.

8

U.S.C. 1291 notwithstanding the absence of a final judgment."

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We review de novo the

district court's denial of a defense of qualified immunity. Hodge v.

Jones, 31 F.3d 157, 163 (4th Cir. 1994).

Qualified immunity shields public officials from personal liability

for discretionary actions provided their conduct does not violate

"clearly established statutory or constitutional rights of which a rea-

sonable person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). We have held that social services officials engaged

in child abuse investigations "may properly assert qualified immunity

in appropriate situations." Hodge, 31 F.3d at 162. The question of

whether an official is entitled to qualified immunity may be answered

as a matter of law by determining "whether the legal norms allegedly

violated by the defendant[s] were clearly established at the time of the

challenged actions . . . ." Mitchell, 472 U.S. at 528. To be clearly

established, "[t]he contours of the [plaintiff's] right must be suffi-

ciently clear that a reasonable official would understand that what he

is doing violates that right." Anderson v. Creighton, 483 U.S. 635,

640 (1987). "Officials are not liable for bad guesses in gray areas;

they are liable for transgressing bright lines." Maciariello v. City of

Lancaster, 973 F.2d 295, 298 (4th Cir. 1992). The resolution of the

legal question requires "consideration of the factual allegations that

make up the plaintiff's claim." Mitchell, 472 U.S. at 528.

Plaintiffs here allege that defendants violated their constitutional

right to family privacy. We considered that right in Hodge, stating

that "the sanctity of the family unit is a fundamental precept firmly

ensconced in the Constitution and shielded by the Due Process Clause

of the Fourteenth Amendment," Hodge, 31 F.3d at 163, but noting

that it "is neither absolute nor unqualified, and may be outweighed by

a legitimate governmental interest." 31 F.3d at 163-64. Curtailing

abuse of a State's minor citizens is such a legitimate interest. 31 F.3d

at 164. In addition, we said:

[C]ircuit courts have strictly construed actionable violations

of the familial privacy right to encompass only those

instances where state officials' actions were directly aimed

at the parent-child relationship . . . implicated the most

essential and basic aspect of familial privacy -- the right of

9

the family to remain together without the coercive interfer-

ence of the awesome power of the state . . . drove a wedge

into [a] family and threatened its very foundation . . . or

eroded the family's solidarity internally and impaired the

family's ability to function.

31 F.3d at 163 (citations omitted).

Plaintiffs' problem in this case is that, accepting their allegations

as true, the facts do not show that defendants acted outside of the

authority granted to them by state statute, much less intruded so vig-

orously into the Renn family as to infringe their family privacy right.

Initially, we note that the state statutes granting authority for the agen-

cy's actions plainly take into account plaintiffs' fundamental interest

in family privacy and integrity. The record does not show any lack of

respect by the defendants for these requirements, however. North Car-

olina general statute § 7A-542 states the purpose of child protective

services to be:

[T]o help the parents or other caretakers and the court to

prevent abuse or neglect, to improve the quality of child

care, to be more adequate parents or caretakers, and to pre-

serve and stabilize family life.

N.C. Gen. Stat. § 7A-542 (1995).

North Carolina general statute § 7A-544 provides clear authority

for Miss Thomas's action in taking custody of Courtney on the night

of September 12, 1993, after Courtney ran away to the Tyndall apart-

ment and reported to police that her father had beaten her:

When a report of abuse, neglect, or dependency is received,

the Director of the Department of Social Services shall

make a prompt and thorough investigation in order to ascer-

tain the facts of the case, the extent of abuse or neglect and

the risk of harm to the juvenile, in order to determine

whether protective services should be provided . . ..

If the investigation indicates that abuse, neglect, or depen-

dency has occurred, the Director shall decide whether

10

immediate removal of the juvenile . . . is necessary for their

protection. If immediate removal does not seem necessary,

the Director shall immediately provide or arrange for protec-

tive services. If the parent . . . refuses to accept the protec-

tive services provided or arranged by the Director, the

Director shall sign a complaint seeking to invoke the juris-

diction of the court for the protection of the juvenile or juve-

niles.

If immediate removal seems necessary for the protection

of the juvenile . . . the Director shall sign a complaint which

alleges the applicable facts to invoke the jurisdiction of the

court. Where the investigation shows that it is warranted, a

protective services worker may assume temporary custody

of the juvenile for the juvenile's protection.

N.C. Gen. Stat. § 7A-544 (1995) (emphasis added). Under North Car-

olina statutes, a juvenile who suffers bruises and internal abrasions

while being disciplined has been held to be a "neglected juvenile." In

re Thompson, 306 S.E.2d 792, 794 (N.C.App. 1983); N.C. Gen. Stat.

§ 7A-517. Thus, Courtney's report that she was beaten by her father

was properly treated, at least initially, as a "report of abuse or neglect"

per § 7A-544, since bruises, abrasions or more serious injuries are the

likely consequences of a beating. Given the late hour of the report and

the fact that it was personally communicated to police on the scene

at the Tyndall apartment, Miss Thomas's ability to investigate was

limited and the report was entitled to be credited until a more thor-

ough investigation could be made. Since Courtney had already left the

home, removal was unnecessary, however Renn refused to accept

Miss Thomas's decision to allow Courtney to stay at the Tyndall

apartment for the night. Faced with a second report of neglect on

Courtney, this time originating with the child herself in the late night

or early morning hours of September 12 or 13, 1993 after the child

had left the home, Miss Thomas did not act outside the authority con-

ferred by state statute, and, we are of opinion, did not violate plain-

tiffs' clearly established rights, in temporarily placing Courtney in a

foster home. Section 7A-571 expressly allows a DSS worker to take

a child into temporary custody in these circumstances without a court

order. N.C. Gen. Stat. § 7A-571 (1995).

11

Section 7A-544 likewise provides authority for Miss Kee's tele-

phone calls seeking information about Courtney after the child was

placed at Three Springs and provides in pertinent part:

In performing any duties related to the investigation of the

complaint or the provision or arrangement for protective ser-

vices, the Director may consult with any public or private

agencies or individuals . . . who shall assist in the investiga-

tion and evaluation of the seriousness of any report of abuse,

neglect, or dependency when requested by the Director. The

Director or the Director's representative may make a written

demand for any information or reports, whether or not confi-

dential, that may in the Director's opinion be relevant to the

investigation of or the provision for protective services.

Upon the Director's or the Director's representative's

request . . . any public or private agency or individual shall

provide access to and copies of this confidential information

and these records to the extent permitted by federal law and

regulations.

N.C. Gen Stat. § 7A-544 (995).

With regard to defendant Sword, plaintiffs claim that the length of

his investigation of the January complaint and the level of interfer-

ence with the family that the investigation entailed violated plaintiffs'

family privacy right. Plaintiffs point to North Carolina's child protec-

tive services regulations to suggest that the investigation should have

been completed in 30 days, but the regulations do not impose any

mandatory period and acknowledge that more complex cases will take

longer to investigate, rather requiring documentation and supervisor's

knowledge of the reason for any delay.

The statutory requirement and professional obligation to

conduct prompt investigations of child abuse, neglect, and

dependency underscore the need to expedite the investiga-

tive process. Extensive delay in making a case decision can

be seen as an unwarranted intrusion in a family and some-

times increases the risk for children. In many instances,

agency investigations can be completed and a case decision

made within 30 days of receipt of the report. When case cir-

12

cumstances delay the prompt completion of an investigation,

the case record needs to document the reasons for the delay

and supervisory-level knowledge of the delay.

North Carolina Division of Social Services Family Services Manual,

Vol. I Ch. VIII, standard # 22. Because the question of qualified

immunity logically arises when officials are operating outside their

clear grant of authority from the State, the Supreme Court has sought

to keep the focus on the rights alleged to be violated, rather than on

the conduct of the officials. In Davis v. Scherer, 468 U.S. 183 (1984),

the Court explained "officials become liable for damages only to the

extent that there is a clear violation of the statutory rights that give

rise to the cause of action . . . ." Davis , 468 U.S. at 194 n.12. Plaintiffs

here have not identified any regulation or statute imposing a time

limit on a neglect or abuse investigation.

Of equal or more importance is that, beside promptness, § 7A-544

requires thoroughness in the investigation of alleged abuse or neglect.

The child protective services regulations carefully address that thor-

oughness not only by mandating a broad scope in information acquisi-

tion but also by distributing responsibility for analysis and decision-

making among DSS staff members:

Determining whether a child is abused, neglected, or depen-

dent requires careful assessment of all information obtained

during the investigative process and the use of professional

judgment . . . . While initially the focus is on the allegations

contained in the report, additional concerns related to the

child or other children may be known to the agency or

revealed during the course of the investigation. The case

decision must therefore reflect assessment of all evidence

and facts available.

....

The case decision making process is to be shared. At a mini-

mum, the worker and supervisor must make the decision. A

team approach to decision-making has several advantages.

It allows for various viewpoints and discussion which could

be a valuable learning tool for newer staff. It may lead to

13

greater consistency in decision-making. It allows for shared

liability and responsibility. Making a decision to substanti-

ate or not can have far-reaching implications for children

and families, and it is not something that can be taken

lightly.

North Carolina Division of Social Services Family Services Manual,

Vol. I Ch. VIII, at p.23 and standard #21. Thus, it is unlikely that

Sword was responsible for the length of the investigation. Regardless,

we are of opinion that under the circumstances facing Sword, he vio-

lated no clearly established right of plaintiffs. Under the regulations,

Sword was required to extend his investigation beyond the allegations

contained in Sylvia Measamer's complaint. In North Carolina, a

neglected juvenile is a child who:

does not receive proper care, supervision, or discipline from

the juvenile's parent guardian, custodian, or caretaker; or

who has been abandoned; . . . or who is not provided neces-

sary remedial care; or who lives in an environment injurious

to the juvenile's welfare . . . .

N.C. Gen Stat. § 7A-517 (21). The child's history of problems, the

involvement of the psychologist, the refusal of other adults in the

neighborhood to cooperate, Courtney's problems in school, inability

to successfully remain in out-of-home placement and frequent run-

away episodes, and, ultimately, the filing of juvenile criminal charges

are all factors that, taken together, suggest that neglect may be occur-

ring and which, combined with Measamer's complaint, justify ascer-

tainment of facts by the State under the authority of § 7A-544 "to

determine whether protective services should be provided." N.C. Gen

Stat. § 7A-544.

The Renns offer no factual basis to demonstrate that Sword's

involvement constituted anything other than limited monitoring, fre-

quently at the Renns' request. Plaintiffs' own allegations preclude any

conclusion that Sword's involvement in the Renn's family constituted

a "familial privacy infringement of constitutional magnitude." Hodge,

31 F.3d at 157. Sword did not initiate any contact with the Renns for

over eight months between the January and September incidents, yet

the Renns themselves sought Sword's involvement on many occa-

14

sions: in their counseling sessions with Dr. Williams, in their relation-

ships with their neighbors, in their search for out-of-home placement,

when Courtney's behavior became more violent; and in their dealings

with the agency on the night of the second incident. Plaintiffs' facts

do not show that Sword's actions or his level of involvement with the

Renn family were "designed to have, have had, or even will have, a

significant impact on the parent-child relationship or on their family's

ability to function." 31 F.3d at 157.

We are of opinion and hold that the individual defendants acted

within the authority granted by state statute. Accepting plaintiffs' alle-

gations as true, we find as well that their actions were reasonable

under the circumstances in relation to the boundaries of the family

privacy right that had been clearly established. We hold, therefore,

that the district court erred in deciding that the defendants were not

entitled to qualified immunity.

We are also asked on appeal to hold that the individual defendants

are, in their official capacities, and that Pitt County Department of

Social Services is, an arm of the State of North Carolina and therefore

immune from suit under the Eleventh Amendment, and also otherwise

absolutely immune from suit. These questions were not addressed by

the district court, however. We ordinarily do not consider questions

not considered by the district court and do not consider these ques-

tions here. McGowan v. Gillenwater, 429 F.2d 586, 587 (4th Cir.

1970).

We are also asked to consider various other questions, none of

which is so inextricably intertwined with the district court's decision

to make necessary a review of them to insure meaningful review of

the qualified immunity decision of the district court. Accordingly, we

do not consider the same. Swint, et al. v. Chambers County Commis-

sion, 63 U.S.L.W. 4189, 4193, No. 93-1636 (1995). It is not remiss,

however, to note in passing that many, or even all, of the questions

remaining in the case may well be answered by our decision here.

The decision of the district court denying qualified immunity to the

individual defendants must be vacated and the case remanded to the

district court to enter its order granting qualified immunity to the indi-

15

vidual defendants and for further proceedings not inconsistent with

this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS

16