Kleiner, J.s.c. (temporarily assigned).
Pursuant to N.J.S.A. 30:4C-12, the Division of Youth and Family Services seeks an order permitting an investigation into the circumstances of defendants' infant child, M.J.W., born October 20, 1978, and directing his parents, B.W. and V.W., to assist and cooperate in the Division's investigation of the welfare of the infant.
The affidavits and testimony reveal that the facts upon which the Division relies are:
1. This court's prior order and decision, entered January 3, 1977, reported at 149 N.J. Super. 64 (J.D.R. Ct. 1977), in which the following findings of fact were made:
From the facts [referred to within this opinion] above and other clear, convincing, and credible testimony offered at trial as well as the court's observations of V.W., I find that the State has clearly established that V.W. is incapable of caring for children.
The testimony is further clear and convincing that B.W. is unlikely and unwilling to change his negative and uncompromising attitude against accepting supportive community services. Without such services it is clear that V.W. could not properly care for one child, let alone three. [ Id. at 75.]
2. That a Division caseworker was denied entrance to defendants' residence for an investigation on November 2, 1978.
Except for an affidavit of the caseworker responsible for defendants' case before the 1976 hearing, stating that because of the condition of the older children she was concerned that M.W. may not be receiving adequate care, no other facts implying the need for an investigation are recited in the affidavits or testimony.
N.J.S.A. 30:4C-12 permits the Division to apply for an investigative order where it has previously requested the parents to allow an investigation into the conditions and care of a child, but has been refused. The statute implies a complaint from an outside agency or concerned citizen which the Division has a duty to investigate. There has been no such complaint in this case. Here the Division is on its own motion, seeking to investigate the circumstances of this
child. Without addressing the propriety of any governmental agency itself looking for business involving the parent-child relationship, the problem before this court is that, although the statute authorizes this court to order an investigation when it is satisfied that one is necessary, the statute does not define a judicial standard upon which such an order should be based. As such, the question before this court is of first impression.
This case was argued by analogy to administrative search cases in which warrants were required, e.g., Camara v. Municipal Court , 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); See v. City of Seattle , 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Also analogized were cases under the Occupational Safety and Health Act, 29 U.S.C.A. § 657(a). Originally, the cases in Federal District Court held that despite the absence of a warrant requirement in that section, rather than render the act unconstitutional, a warrant requirement should be engrafted onto the statute, e.g., Brennan v. Gibson's Products, Inc. of Plano , 407 F. Supp. 154 (E.D. Tex. 1976); Dunlop v. Hertzler Enterprises Inc. , 418 F. Supp. 627 (D.N.M. 1976). However, the Supreme Court held § 657(a) unconstitutional insofar as it authorized inspections without a warrant or its equivalent. Marshall v. Barlow's Inc. , 436 U.S. 307, 98 S. Ct. 1816, 1827, 56 L. Ed. 2d 305 (1978). The court reasoned in part:
The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution * * * Also a warrant would then and there advise the owner of the scope and objects of the search, ...