Matter of Browning

476 S.E.2d 465 (1996)

In the Matter of Tommy BROWNING and Robert Browning.

No. COA95-1405.

Court of Appeals of North Carolina.

October 15, 1996.

Burns, Price & Arneke, L.L.P. by Robert E. Price, Jr., and Gail C. Arneke, Winston-Salem, for petitioner-appellee.

Martin, Van Hoy, Smith & Raisbeck, L.L.P. by Tamara A. Fleming, Mocksville, for respondent-appellant.

JOHN C. MARTIN, Judge.

On 14 February 1995, a report of abuse was made to the Davie County Department of Social Services concerning Tommy Browning, the juvenile son of respondent Bobby Daniel Browning. An investigation was initiated *466 by Lucinda Shay, a social worker, on that same day. Based upon discussions by Ms. Shay with Tommy Browning and his juvenile brother, Robert Browning, the investigation was expanded to include Robert Browning.

After Ms. Shay met with respondent and his two sons, respondent requested through his attorney that Ms. Shay have no further contact with his sons except as arranged through his attorney. Ms. Shay continued to meet with the boys at school, but did not seek to have further contact with Tommy and Robert during the summer school vacation period.

Ms. Shay requested that respondent sign consent forms for his sons to undergo a Child Mental Health Evaluation. The evaluation is conducted by a psychologist and generally involves eight sessions. Respondent indicated that he would consent for his sons to participate in one session, but would not consent to the complete evaluation.

Ms. Shay filed a petition to prohibit respondent from interfering with the child protective services investigation. Respondent testified that his objection to the investigation was based upon his religious beliefs. In particular, he said he did not believe in psychologists and would prefer that his children undergo counseling through their minister.

The trial court found, based on clear, cogent and convincing evidence, that respondent had interfered with the investigation of the Davie County Department of Social Services by refusing to allow a Child Mental Health Evaluation of his two sons. The court also found, based on clear, cogent and convincing evidence, that respondent had no lawful excuse for refusing to allow the evaluation. The trial court entered an order prohibiting respondent from interfering with the Department of Social Services investigation. Respondent appeals.

Petitioner has moved to dismiss this appeal because the order appealed from is interlocutory. Ordinarily there is no right of immediate appeal from an interlocutory order; however, where the order affects a substantial right, the loss of which will injure the party appealing if not corrected prior to final judgment, it is immediately appealable. N.C. Gen.Stat. §§ 1-277(a) (1983), 7A-27(d) (1995); Travco Hotels v. Piedmont Natural Gas Co., 102 N.C.App. 659, 403 S.E.2d 593 (1991), affirmed, 332 N.C. 288, 420 S.E.2d 426 (1992). The order from which respondent has appealed in this case affects a substantial right and, if erroneous and not corrected prior to final judgment, would result in respondent's loss of that right. Accordingly, we deny petitioner's motion to dismiss the appeal and decide this case on the merits.

By three assignments of error combined in a single argument, respondent contends that the trial court erred in its conclusions that respondent's religious beliefs are not a lawful excuse for his refusal to consent to the Child Mental Health Evaluation of his two sons, and that he had obstructed or interfered with petitioner's investigation into allegations that he had abused the children. We reject his argument and affirm the trial court's order.

Upon receiving a report of suspected abuse, the director of the county's Department of Social Services is required to initiate an investigation within 24 hours. N.C. Gen. Stat. § 7A-544 (1995). Section 7A-544.1(a) specifically authorizes the director to file a petition seeking an order directing any person obstructing or interfering with an abuse investigation to cease such interference. The statute requires the DSS to prove by clear, cogent and convincing evidence that the respondent named in the petition has, without lawful excuse, obstructed or interfered with a child protective services investigation. N.C. Gen.Stat. § 7A-544.1(c) (1995). Obstruction of or interference with an investigation is defined by the statute as follows:

refusing to disclose the whereabouts of the juvenile, refusing to allow the director to have personal access to the juvenile, refusing to allow the director to observe or interview the juvenile in private, refusing to allow the Director access to confidential information and records upon request pursuant to G.S. 7A-544, refusing to allow the director to arrange for an evaluation of the juvenile by a physician or other expert, or other conduct that makes it impossible for *467 the director to carry out the duty to investigate.

N.C. Gen.Stat. § 7A-544.1(b) (1995). In the present case, respondent refused to permit the director to arrange a Child Mental Health Evaluation for his two sons. His refusal meets the statutory definition of "obstruction of or interference with" the investigation.

The next question is whether respondent's interference was for a lawful reason. At the hearing, respondent stated, "I prefer not my children to go through that sort of thing," and when asked for his reason, stated, "Well, first, I do not believe in psychiatrists and stuffjust the way I believe and the way I've been raisedthe way I've been taught bythe way Iin my religion and all that, I feel in my heart to me myself." Respondent also denied that he had done anything to cause himself and his children to be subjected to the investigation. Assuming his testimony was sufficient to support his argument that his objection was based on religious grounds, the reasons stated do not constitute a lawful excuse for his refusal to permit the evaluation.

The liberties secured by the First Amendment to the United States Constitution and by Article I § 26 of the Constitution of North Carolina are basic and fundamental. However, the freedom to exercise one's religious beliefs is not absolute. In re Williams, 269 N.C. 68, 152 S.E.2d 317, U.S. cert. denied, 388 U.S. 918, 87 S. Ct. 2137, 18 L. Ed. 2d 1362 (1967). The Constitutional provisions regarding freedom of religion do not provide immunity for every act, "nor do they shield the defendant from a command by the State that he do an act merely because he believes it morally or ethically wrong. It is the right to exercise one's religion, or lack of it, which is protected, not one's sense of ethics." Id. at 78, 152 S.E.2d at 325. One may not be compelled by governmental action to do that which is contrary to his religious belief in the absence of a "compelling state interest in the regulation of a subject within the State's Constitutional power to regulate." Id. at 80, 152 S.E.2d at 326 (citations omitted).

The intent of the statutes requiring the Department of Social Services to screen and investigate complaints of child abuse is the protection of neglected and abused children, G.S. § 7A-542, which is undeniably a compelling state interest. Respondent's rights as custodian of the children are secondary and must give way to the protection of his children. Accordingly, his refusal to permit the evaluation based upon his beliefs is not constitutionally protected conduct and cannot afford him a lawful excuse for his interference with the Department of Social Services investigation. Therefore, the trial court's order that respondent cease his interference with the investigation and directing the Department of Social Services to proceed with the Child Mental Health Evaluation is affirmed.

Affirmed.

EAGLES and SMITH, JJ., concur.