North Carolina Addresses the Dilemma of "Legal Orphans"

   Ever since the passage of the Adoptions and Safe Families Act (Pub. L. No. 105-89) by Congress in 1997, the several  states have been under a mandate to achieve permanence for juveniles in foster care at the earliest possible time. To this end, the Act imposes a mandate to initiate termination of parental rights proceedings if a child has been in the custody of a county department of social services 15 of the most recent 22 months, unless the court finds that termination of parental rights is not in the child's best interest or certain other, limited exceptions exist. (See 42 U.S.C 675(5)(E). North Carolina shortens this period to requiring the initiation of termination proceedings where a child has been in custody 12 of the most recent 22 months. (see N.C. Gen. Stat. 7B-907). As a result of this race to permanence, many states have been faced with an unintended result of mandated termination of parental rights cases: the creation of legal orphans when a plan of adoption falls by the wayside following the termination hearing.
    This year the North Carolina General Assembly took a step to correct this condition by enacting N.C. Gen. Stat. 7B-1114. The statute, which provides for the reinstatement of parental rights following a termination of parental rights proceeding, is significantly restricted in application to those circumstances where a child is at least 12 years old or where there are significant circumstances justifying parental right restoration, where the juvenile has no legal parent, is not in an adoptive placement and is not likely to be adopted within a reasonable period of time. In addition, the termination order must have been entered at least three years prior to a motion being filed to restore parental rights unless the court finds or the DSS and GAL agree that the permanent plan is no longer adoption.
   If successful, the movant (either the juvenile, the DSS or the GAL) can initiate proceedings which in the end can lead to the restoration of a legal relationship between former parents and the the ir child. While this is a useful first step, the likelihood that this legislation is going to substantially irradicate the specter of the legal orphan is slim. Termination proceedings, at least when conducted within the confines of an abuse, neglect or dependency case, tend to result when there is significant failure on the part of a parent. Quite frequently this is due to significant substance abuse or mental health problems which are not likely to magically go away, especially when there is no longer an incentive to address such issues when the department of social services ceases to be actively involved in the life of the parent. Thus, the parent whose rights were terminated is likely to still be in the grip of those problems that led to the termination in the first place. The trial court, when confronted with a motion to reinstate parental rights must take into consideration what efforts the parent has made to rehabilitate themself. It also must consider the child's best interest. Taken together, few will be the cases where a parent will have done enough to serve as a permanent caretaker for a child who the law requires be provided safety and permanence.
   And so, while great energy and no doubt, enthusiasm, went into the creation of this legislative effort, the North Carolina legislature has still failed to squarely address the underlying issues that lead to the creation of legal orphans: a failed mental health system which prevents parents from being properly treated for mental health and substance abuse related issues, an over-all erosion of public morality which enables bad behavior by parents to thrive, and the propensity in some judicial districts for there to be a hair trigger, where the first day after twleve months have elapsed is the day when a termination action is being filed.

CLE Opportunity: 2011 Juvenile Law Update (Click on Image)

Using the Contempt Power as Carrot and Stick in Juvenile Court

    Generally speaking, the use of contempt as a mechanism to modify behavior in Juvenile Court is rarely used in abuse, neglect and dependency cases. The reason for this is not hard to figure out considering that Juvenile Courts are statutorily mandated to protect the juvenile in such a way that respects family autonomy. In such a context, it almost appears unseemly to threaten incarceration of a parent when one is trying to preserve family autonomy. But such a view is a particualrly narrow one and doesn't consider the long term implications of drug or alcohol abuse or domestic violence (among the more prevailant problems juvenile court parents face) for family autonomy. If juvenile courts truly wish to nurture families and make them whole once again by reunifying children, they must only do so when it reunification can safely be done. This implies a fundamental change from the ususal business in the household which has historically created an unsafe household. While it certainly is simplistic to say, fundamental change at its core must include abstinence from behavior which is going to continue to cause safety issues for children.
   How is abstinence from problematic behavior to come about, one might reasonable ask, given that in many cases such behavior is longstanding and deeply entrenched? Clearly (and at risk of sounding like Judge Posner) the solution is in part found in increasing the opportunity cost of engaging in such problematic behavior. If there is a clear and present danger of going to jail every time that one uses street drugs, or abuses alcohol, or gets into a knock-down-drag-out with someone else in the household, one would expect that such behavior would be significantly diminished. That is the view of the Food and Drug Administration and the Surgeon General as they up and up the cost of a pack of cigarretes to cost prohibitive levels: certain extreme cost modifies socially unacceptable behavior. If such an approach can effectively reduce the incidence of smoking in the United States, perhaps similar in-roads can be made in the area of alcohol abuse, drug addiction, and domestic violence by employing a similar model in Juvenile Courts.
   But the question must be asked: is there any such worry of certain, prohibitive cost in the typical Juvenile Court, that consequences will immediately accompany unwise action? Sadly, the answer is in the negative. As a consequence, parents of children who are adjudicated in Juvenile Court because of their problematic behavior continue to engage in this problematic behavior because they don't see any reason to stop in the short term and the long term is too far away to give any credible thought to it. It is these same parents, after their children are in DSS custody for twelve months, who are utterly shocked when the court changes the plan from reunification to guardianship or termination of parental rights and adoption.
   "Spare the rod and spoil the child", that's the contemporay American vernacular for Old Testament wisdom regarding proper parenting. Regardless of where one stands on corporal punishment, what everyone can agree upon is that proper childhood development requires some degree of discipline, the discipline being administered lovingly to admonish more than to punish, to redirect behavior more than to condemn it. Why not apply proper parenting technique to parents who have historically demonstrated that they need redirection and a new model for behavior?
   Certainly, jail is not fun. Nor is it cheap. Nor is it the solution every time. But if one knew for a near certainty that one was going to go to jail for every careless, wilful mistep, how likely would it be that contempt would have to be used every time? The contempt power afforded the Juvenile Court pursuant to General Statute 7B-904(e) affords the court with carrot and stick to drive proper parental behavior, to steer parents clear of a path which leads straight to termination and to responsibly work toward the preservation of family autonomy. What's more, this power does not depend on a motion from a party but may be invoked ". . .on the court's own motion."The question is, will the supreme parent exercise itself appropriate parenting technique or will it choose to perpetuate the cycle of neglect, this time on a much higher societal level?

Advancing the Parent's Interests in Court: Parent Court Reports

When a trial court presiding over a Juvenile case is conducting a review pursuant to N.C. Gen. Stat. 7B-906 or conducting a permanency planning review pursuant to N.C. Gen. Stat. 7B-907, the trial court is largely unbridled in its ability to receive and examine evidence which will aid its review and enable its determination of ". . .the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. 7B-906(c); 7B-907(b). Typically, the County Department of Social Services as well as the GAL office submit reports which, along with social worker and GAL volunteer testimony, comprises the majority of evidence received in most court rooms in North Carolina most of the time.

But aren't parent attorneys missing an opportunity here?


Nothing in the statute precludes the parent from making more of an evidentiary showing. In fact, information from the parent is the first thing mentioned with regard to what a trial judge may consider. Yet, almost without fail parents decline to take the stand to testify on their own behalf. Sometimes (well, admittedly a lot of the time) there is a very good reason for not taking the stand. But even if one grants that a parent's testimony may not be the wisest thing to prescribe in all occasions, there is always something that can be done which incurs minimal risk and which at the same time places the parent on a little better evidentiary footing than they would maintain otherwise: developing and submitting a parent report.

The report need not be elaborate. It can be only a page or two. But it should outline what efforts the parent is taking to comply with the orders of the court. This may include any number of narratives, from the quest to become employed, to finding a safe, appropriate home, to attending NA or AA, or the times that the parent has attended outpatient substance abuse treatment in the past three months. The report can include attachments too, from copies of employment applications and child support receipts to counseling attendance logs and letters of support from sponsors or others who might be willing to advocate on behalf of the parent in the community. Of course, one should not spare an opportunity of including photographs of visitation, to show the judge not only that the parent was there but that the visit went well and was beneficial to both parent and child.

While time is short and the pay on juvenile cases is low, everyone is expected to advocate zealously on behalf of their clients, however troubled or lowly they might be. To this end, consider what you might effectuate to this end through a parent court report. It may put a better face on an otherwise complicated evidentiary situation. On the other hand, it may be the one factor that sends the kids back home with your client.

Child Support Continuing Legal Education on August 19, 2011 (Click Image!)

J.D.B. v. North Carolina: The U.S. Supreme Court Goes Down the Slippery Slope with Regard to Juvenile Interrogations

               When a juvenile is taken into custody, it is incumbent upon law enforcement to properly advise the juvenile of their Miranda rights prior to conducting any interrogation. N.C. Gen. Stat. 7B-2101. Where the juvenile is under the age of 14, any statement made by the juvenile outside the presence of their parent, guardian, custodian or attorney is inadmissible. Id. However, the question that most frequently confronts North Carolina courts is that of whether a juvenile has actually been taken into custody.

                To undertake such an inquiry, the courts of this State have followed the objective test originally set out by the U.S. Supreme Court in U.S. v. Mendenhall, 446 U.S. 544 (1980). Under this test, a reviewing court determines “whether a reasonable person in the position of the defendant would believe himself to be in custody or that he had been deprived of his freedom of action in some significant way." In re I.R.T., 184 N.C. App. 579, 583 (2007). Relevant considerations for an objective inquiry have included (1) the threatening presence of police officers; (2) the display of a weapon by an officer; (3) physical touching of the suspect; and (4) the choice of language used by the interrogator. Id. at 584. The Court of Appeals, in its 2007 decision in In re I.R.T. broadened the factors that could be considered to include a juvenile’s age. Id. This inclusion was not without its critics who claimed that the Court of Appeal’s inclusion of the juvenile’s age would introduce a subjective element into an otherwise objective analysis and in so doing, would foster uncertainty in police investigations by forcing an interrogating officer to guess whether a juvenile was “in custody”. See Jonathan S. Carter, You're Only as "Free to Leave" as You Feel: Police Encounters with Juveniles and the Trouble with Differential Standards for Investigatory Stops Under In re I.R.T., 88 N.C.L. Rev. 1389, 1389-1442 (2010). The N.C. Supreme Court weighing in on this issue in its decision in In re J.D.B, agreed with the critics and chose to not include a juvenile’s age as one of the factors in determining whether a juvenile had been taken into custody. In re J.D.B.,  363 N.C. 664, 686 S.E.2d 135 (2009).

                Today the U.S. Supreme Court, taking up the N.C. Supreme Court’s decision in J.D.B., reversed and remanded.  Indeed, a juvenile’s age is to be a relevant consideration in determining objectively whether a reasonable person would believe that a juvenile was free to leave an interrogation. See J.D.B. v. North Carolina, No. 09–11121. (U.S. S. Ct. June 16, 2011).  Supporting the Court Majority’s position were a host of arguments including commonsense conclusions about child behavior that juveniles “. . .often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” that they “. . .are more vulnerable or susceptible to . . . outside pressures” than adults and finally that the law has historically reflected the same commonsense assumptions by its impositions of disability in contract and in other legal situations.  But as the critics stated earlier, as do Justices Roberts, Scalia, and Thomas today, there will be a price to pay . Now that the door has been opened to injecting a subjective consideration into what was previously a fairly straight-forward, objective test, what is to stop further considerations from being injected? As Jonathan S. Carter suggests, what prevents race, gender or economic status from being considered? And from the standpoint of law enforcement, how are they going to know (without knowing much about the suspect) whether some subject factor within the juvenile’s make-up and circumstances will lead the juvenile to believe (as perceived by a “reasonable person”) that the juvenile is not free to leave an interrogation when in facts are to the contrary?  

The J.B.D. v. North Carolina opinion can be read at http://www.supremecourt.gov/opinions/10pdf/09-11121.pdf

The Curious Case of Undisciplined Juvenile Representation

Since the Supreme Court took up the case of In re Walker, 282 N.C. 28 (1972), there has been a decided dicotomy between delinquent and undisciplined cases when it comes to the right of representation. The Walker Court, in its holding, differentiated delinquent cases from those in which undisciplined behavior was merely alleged on a number of levels, the principle diferentiation being that at a hearing in which a child was adjudicated undisciplined ". . .could not result in. . .commitment to an institution in which. . .freedom would be curtailed." Id. at 37. The practical import of this distinction is that the child alleged to be undisciplined is not automatically entitled to legal counsel.

So how does this square with N.C. Gen. Stat. 7B-2000 which states that "[a] juvenile alleged to be within the jurisdiction of the court has the right to be represented by counsel in all proceedings"?

The simple answer is that it squares perfectly. If one reads further, the statute makes a distinction between when counsel can be assigned, confining the possibility of appointment in an undisciplined case to those circumstances where the alleged or adjudicated undisplined child is faced with a contempt proceeding. Again, the possibility of confinement was exactly what was important to the Walker Court in determining whether a right to counsel existed. And reading further, one finds that in such circumstances in which an alleged or adjudicated undiscplined child qualifies for the appointment of counsel, that child is entitled to the benefit of a conclusive presumption of indengence. Thius, appointment is automatic regardless of the financial wherewithall of the child.

Camreta v. Green: Social Services Investigations Given a Reprieve for Now

   As suggested in an earlier posting, the Supreme Court took no substantive position with regard to the issues case of Camreta v. Green. The 9th Circuit case, which factually centered around an elementary school interview by state child protective services worker and a sheriff's deputy, on the trial level involved a 42 U. S. C. §1983 claim, alleging that the in-school interview breached the Fourth Amendment’s proscription on unreasonableseizures. The District Court granted summary judgment to the officials. The Ninth Circuit affirmed, holding that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct.


   Upon review by the Supreme Court, the Court was initially troubled about two issues; first the issue of whether the prevailing party from the 9th Circuit case could seek review from the Supreme Court and secondly, whether the issues before the Court were moot, since the sheriff's deputy no longer worked in law enforcement and the individual initially interviewed by the social worker and the deputy no longer lived in the state of Oregon where the suit originated and furthermore was days away from her 18th birthday.


   The Court dispensed with both of these issues, finding that the prevailing parties could seek review before the Supreme Court and that the case was indeed moot. Nonetheless, the court applied a rule of "vacatur," which, while recognizing that the case was moot, nonetheless allowed the Court to apply any remedy that justice required. In this case,such a remedy required that the 9th circuit holding be vacated, thus effectively stripping the decision of any binding effect in the Ninth Circuit.


   All that having been said, it would be a wise practice for every county social services worker in child protective services to be extremely cautious when conducting interviews with children outside of the presence of a parent, realizing that such litigation can and will likely arise again under the right set of circumstances.While it is an interesting claim that a parent has a reasonable expectation of privacy with regard to their children in a public school setting, at least one other circuit has found constitutional violations with regard to child interviews by social workers when they took place in a private school setting. See Doe v. Heck, 327 f.3d 492 (7th Cir. 2003). Thus, rather than risk litigation, where an alternative to the private interview exists (and this author is very aware of how some parents make this extremely difficult) that alternative should be given preferred status. And as always when their is a question about the appropriateness of a given proposed action in a social services investigation, legal counsel should be sought first, not after the fact (when the damage has already been done).


The opinion can be found at http://www.supremecourt.gov/opinions/10pdf/09-1454.pdf

North Carolina Adoption Assistance Eligibility: An Equal Protection Violation?

Adoption assistance was initially a creature of federal law (P.L. 96-272—the Adoption Assistance and Child Welfare Act of 1980) to encourage the adoption of special needs children and remove the financial disincentives to adoption for the families. Once federally authorized, the states were left to set forth the framework by which this money (provided through federal Title IV-E dollars) was to be accessed and spent. In North Carolina, adoption assistance is statutorily provided by for by N.C. Gen. Stat. 108A-49-50.1, which collectively governs the minimum rate of adoption assistance, the goals for guiding the distribution of money, and the basis for eligibility.


While the purpose of the program is straight forward –to encourage the adoption of certain hard-to-place children- the specific criterion for eligibility adopted by the Social Services Commission gives some pause for concern. According to the North Carolina Department of Health and Human Services, children eligible only include the following :

• Children with special needs, such as physical, mental, and emotional disabilities
• Sibling groups and teenagers
• Minority children, especially African American males

As it stands, two equally situated children in two equally situated prospective adoptive families may get two different outcomes when it comes to adoption assistance if only one factor separates the two, namely, the issue of whether one of the children is a member of a minority group or not.

Doesn’t the 14^th Amendment have something to say about the race-based distribution of public benefits?

Certainly the argument for the government will assert  that an important governmental objective is being served by promoting the adoption of minority children and that the guidelines set forth by the Social Services Commission are designed to promote that goal. But that is only part of the necessary argument. Not only should a program which  treats racial groups unequally advance an important governmental objective but must do so in a way that is narrowly tailored to meet this objective. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978).  The implication of “narrow tailoring”  means, on a minimal practical level, that in advancing the important government purpose of encouraging minority group member adoptions, non-minority groups must not be impermissibly burdened.

The obligation of establishing that an important objective is being advanced and that the means for doing so are narrowly tailored falls with the government. See FEC v. Wis Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007). The question to ask is this: how can a system of eligibility for adoption assistance in North Carolina demonstrate its eligibility criteria are narrowly tailored when it placed significant obstacles in the way of non-minority groups to receive adoption assistance while giving assistance carte blanche to minority groups? That’s something for Attorney General Roy Cooper to actively consider in his spare moments.

North Carolina’s adoption criteria are found at  http://www.ncdhhs.gov/dss/adoption/

Sibling Association as a Constitutional Right

Sibling visitation is not an issue that has troubled too many legislatures lately. Neither has the issue much bothered the courts. Yet the issue is no stranger to those who practice in juvenile court and there are those who whould urge upon the reader the importance of recognizing simbling visitation as a value if not as a right. The unfortunate fact is that sibling groups frequently get caught in the fray of a juvenile petition and very often, it is the bond between siblings that is the only thing that is stable in each child's life. Given such considerations, should the law be so quick to subordinate a child's ability to associate with a sibling to the desires of the parents, or if the parents are unfit, the guardian or legal custodian? This is currently the law under Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) and its progeny.

Admittedly, one is always asking for trouble when one interjects another party's interests (i.e. the child's) into the fray between parents and the State. Yet this is already being done in North Carolina with the statutory requirements that are already in place. These requirements protect a child's interests by requiring that the child's best interests be taken into consideration by and be the pole star by which all decisions are made by every juvenile court judge. To ensure that theses interests are being looked after, the law requires that every child in juvenile court be represented by a GAL and that the GAL be afforded counsel.Thus,  if one would argue against recognition of sibling visitation issues on grounds of widening the ground war, the argument fails as the war is already widened (or at least so long as the N.C. Legislature provides the funding and statutory basis for the GAL Program).

But granted that the child's interests are being represeted through existing structures, does this mean that the collective child group's interests are being considered? Is there a fundamental interest here that transcends the individual child that is of such interest and of such imporance that it should be protected? The answer to this question, admittedly, does not readily avail itself simply. And even if such an interest is not being recognized, except perhaps derivatively, there is likewise no clear answer as to what, if anything, is an appropriate remedy. Another GAL for the collective siblings? Legislation that requires keeping sibling group visitation absent extraordinary circumstances (i.e. separate adoptions)?

For one person who advocates for greater recognition of sibling rights to association, see Christopher D. Vanderbeek, Oh Brother! A California Appeals Court Reaffirms the Denial of Necessary Access for Separated Children to Build and Maintain Sibling Relationships , 350 UC Davis J. of Juv. Law & Policy 349-381 (2009) at the following web address: http://jjlp.law.ucdavis.edu/archives/vol-13-no-2/Vanderbeek.pdf

Parent Attorneys must Meet with Clients Before Court

Meet with your client before court!  It never ceases to amaze me how often parent attorneys put off having critical conversations with their client until the day of court. I know the argument-there is no time, child welfare clients are hard to track down, etc.  But are such excuses really valid? Would an attorney defending a criminal case make such arguments and not expect repercussions , whether on appeal on a claim for ineffective assistance of counsel, or before the State Bar?

                Meeting with your client before court can help you to better represent your client’s position. Perhaps your client kept an appointment for a substance abuse assessment and is now receiving outpatient treatment.  By learning about this ahead of time, you can present the court with exhibits that are favorable to keeping a plan of reunification on the table. On the other hand, the last place you want to find out about a client’s big slip up is the day of court. By learning about the facts early the attorney has the latitude to develop effective damage control which may keep DSS working with your client just a little longer. Finally, meeting with your client consistently and regularly outside of court shows your client you are investing in them. This may lead to better performance by the client and it may get them to show up to court more consistently.

                Setting  an expectation in person, face to face,  achieves better client outcomes more often than not.  Zealous representation is not a solo act, it requires a partnership between the advocate and the client built upon mutual trust. The expectation that is set by early consultation is that the client will be on their best behavior and the advocate in the child welfare setting will use everything at their disposal to highlight that good behavior. It simply comes down in large part to the attorney simply  “being there”, for you can’t represent that which you do not know.

In the Matter of J.V.J: Rewarding Bad Behavior?

 

On March 1, 2011, the North Carolina Court of Appeals filed the case of In the Matter of J.V.J. (COA10-1074). An Orange County appeal, the issue in controversy being an adjudicatory order in which the Respondent Juvenile was adjudicted a delinquent based upon alleged assaultive actions upon a school resource officer. The Court's review confined itself to the sole issue of whether the adjudication was adequaetely supported by the trial court's findings of fact. The Court remanded the case back to the trial court due to that court's rather palltry factual findings which, among other things, failed to reference that the findings were made by clear cogent and convincing evidence.

Admittedly, I am sure the reader would agree, that this case is one that should hardly raise an eyebrow. That is, unless one considers the facts a little more deeply.

First of all, there is the behavior of the Respondent to which there was abundant and largely undisputed evidence at trial. The presiding judge found that the Respondent initially raised a commotion in the classroom because of something his teacher had said. This led to a call to the school resource officer which then led to the Respondent assaulting him, getting so far out of kilter that a standoff finally ensued, the Respondent threatening to throw a chair at the Resource Officer while the Resource Officer threatening to use his Tazer on the Respondent.

Next there is the behavior of the Respondent at trial. The Orange County trial court had adjudicated the case on January 20, 2010 and had set the case for disposition on February 17, 2010. The case was continued on motion from the Respondant on February 18, 2010, and again on March 17, 2010, both occasions due to the Respondant's unavailability.

Finally, there is the behavior of the Respondent on appeal. The Court has long held that “‘[a]n adjudication of delinquency is not a final order’” and is therefore unappealable. In re M.L.T.H., __N.C. App. __, __, 685 S.E.2d 117, 121 (2009) (quoting In re Taylor, 57 N.C. App. 213, 214, 290 S.E.2d 797, 797 (1982));. The Juvenile Code also speaks to the issue. See N.C. Gen. Stat. § 7B-2602. These facts were acknowledged by both the appellant and the appellee as well as the reviewing panel of the Court of Appeals. Nonetheless, the Respondent filed his appeal asking for relief by means of a Writ of Certiori, seeking in the process to get special consideration despite the fact that, based on the facts which reveal no vital issues of public importance, no special consideration was due.

So, despite the Respondent's assaultive and disreprespective behavior, despite the juvenile's rejection of statutory law and prior prescedent which would simply have him wait until the disposition in his case was heard, in short despite all this continuous stream of bad behavior, the juvenile is rewarded not only with certiori being granted but with the case being remanded back to the trial court.

It is a maxim of the law that those who would command that equity be done unto them must themselves be equitable. Somehow, somewhere, this principle has gotten lost in this case. Given the lofty aims and directives of the Juvenile Code with regard to adjudicating deliquent youth, those platitudes which suggest that the State embraces redirection and rehabilitation of the wayward to set them back on a path of right conduct, it seems that just the opposite has been accomplished here.

West Publishing now pre-ordering for North Carolina Juvenile Code: Practice and Procedure, 2011 ed.

The most comprehensive work published in North Carolina on all topics relevant to child welfare, termination of parental rights, delinquent and undisciplined juveniles. Currently in its ninth annual edition, West Publishing is now taking pre-orders for the work with an expected fulfillment date of April 12, 2011.

Summary Description

This treatise discusses the main topics germane to child welfare and juvenile delinquency and undisciplined cases. It focuses on procedure in the context of the most current case law and statutory requirements. A chapter is devoted to termination of parental rights cases, involving procedural requirements in private termination cases as well as those brought by a county department of social services agency. In addition, the applicability of the general rules of evidence to juvenile cases is covered, including documentary and photographic evidence, privileges, and commonly encountered hearsay issues. Extensive forms are provided, including discovery forms related to confidential material production

Camreta v. Greene: Will the U.S. Supreme Court look again at Fourth Amendment implications of social services investigations?

On March 1,2011,  the United States Supreme Court heard oral argument in the consolidated cases of Camreta v. Greene and Alford v. Greene. The center of the controversy, an in-school child interview by a social worker investigating a child protective services report, brings to the forefront issues  regarding the applicability of the Fourth Amendment to social services investigations.

For good or ill, the Supreme Court has an opportunity to revisit the issues that have long been neglected since the court entered its 1972 ruling in Wyman v. James. In that case, the Court authorized a warrantless search by social services of the home of an AFDC recipient, holding among other things that the search was reasonable and that it did not implicate the warrant clause of the Fourth Amendment.  Since that time, a number of Circuits have narrowly construed application of Wyman to its own facts and have instead imposed a warrant requirement in a number of situations involving social worker interviews of children (curiously the Fourth Circuit is not one of them). In Camreta, the Ninth Circuit, while not mandating an across the board requirement for a warrant requirement absent consent or exigent circumstances, nonetheless indicated that based on the facts of that case, a warrant was necessary before the social worker could lawfully conduct an interview with the child in question.

From a review of the Camreta transcript, the High Court doesn’t seem terribly inclined toward  rendering a ruling on the merits of the cases. The Court briefly entertained and then seemed to brush aside considerations that there no longer existed a controversy and that the cases which brought  the matter to the court’s attention were now moot (the plaintiff now being 17, living in another state and not seeking monetary damages). Nonetheless, the Court gave no indication it desired to get its hands dirty with the details in Camreta. Rather, there was every appearance that the Court will simply  vacate the holding of the Ninth Circuit’s decision, thus eliminating the case as precedent and restoring qualified immunity upon governmental officials who choose to interview children without a warrant.

Scotusblog’s Case Page for Camreta can be found at http://www.scotusblog.com/case-files/cases/camreta-v-greene/ . Appellant/appellee as well as amicus briefs can be found on this page

as well as a written and audio transcript.

Responding to motions to produce DSS confidential records:

From time to time, my office will receive a motion from a criminal defense attorney to repoduce confidential child welfare records. The thrust of the motion will usually entail explaining the nexus between the records and the potentiality of those records to reveal exculpatory information about the defendant. The North Carolina Criminal Proceedure Act, particularly through G.S. 15A-903 provides that a defendant in a criminal case is entitled to the law enforcement files involved in the investigation of the alleged crimes committed, including those from  “prosecutorial agencies.”  The term, “prosecutorial agency” is defined at 15A-903 as  “. . .any  public or private entity that obtains information on behalf of a law enforcement agency or prosecutor in connection with the investigation of the crimes committed or the prosecution of the defendant.” However, it is important to understand that the term is not as broad as may first appear. For example, the term does not encompass the North Carolina Attorney General's Office or its files, except in very limited circumstances. See State v. Sexton, 352 N.C. 336, 532 S.E.2d 179 (2000). Likewise, a county department of social services is not necessarily an entity that would fall within the reach of the definition of prosecutorial agency absent more than a Defenmdant's assertion of the same.  In order to meet the necessary burden, the Defendant must produce some evidence that agency records are in some way a component of the prosecution file or that the agency, through its employees, acted in the capacity of a prosecutorial agency other than merely contacting law enforcement who then conducted their own investigation and generated their own evidence. Without such evidence, no prosecutorial agency status can be conferred and the defendant is not entitled to the records   requested.  State v. Pendleton, 175 N.C. App. 230, 622 S.E.2d 708 (2005).

What limits exist upon social services investigations?

Wyman v. James Revisited: Judicial Oversight, Constitutional Rights, and Social Services Investigations

See the complete article at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1369190

Abstract:     
This article is focused upon administrative searches and seizures undertaken by social services agencies with respect to child welfare complaints. In addition to articulating the past and current state of the law, the article proposes changes to bring about a greater consistency among the federal and state courts in the United States.

The U.S. Supreme Court, in Wyman v. James, 400 U.S. 309 (1971), for the first time considered the issue of the applicability of the Constitution to social services investigations, though it has continued to explore the constitutional implications of the administrative search or seizure. It has not sought to address the issue since that time. Nevertheless, in the intervening thirty-six years, a large number of federal and a handful of state courts have reviewed the constitutionality of social services investigations and, in the process, have tackled the issue of the continued viability of Wyman: whether social workers are state actors for the purpose of the applicability of the Fourth Amendment, whether child welfare investigations constitute a search or seizure, whether a warrant and probable cause is required to conduct a search and whether a social worker special need exception exists to Fourth and Fourteenth Amendment scrutiny.

Given the on-going occurrence of the social services home investigation since Wyman, the need for an articulation of the current state of the law is great. Part One of this article attempts to provide such an articulation, giving an overview of both Fourth and Fourteenth Amendment protections as they apply to all governmental searches. Part Two undertakes a review of the Pre-Wyman case law regarding administrative searches, as well as Wyman itself, reviewing finally the post-Wyman case law from both the federal and state courts regarding administrative social services investigations and the applicability of the Fourth and Fourteenth amendments. Part Three of this article reconsiders Wyman in light of the most recent judicial developments and asks the question as to whether the requirement of a warrant and probable cause is appropriate for social services child welfare investigations or whether the Supreme Court's totality of the circumstances rationality test or its Special Needs doctrine may justify the creation of a social worker exception to the general warrant and probable cause requirements incumbent upon most searches and seizures

Duty of GAL appointed for a parent under 7B-602(b)

In re A.S.Y., __N.C.App.__,__S.E.2d__ (December 21, 2010)

The N.C. Court of appeals has issued an opinion in the above-listed case which reverses the trial court's decision to revieve a court appointed GAL of further responsibility in a TPR action filed by a motion in the cause. The Respondent Mother failed to appear at the hearing, her GAL presented the mother's position that the Court had no jurisdiction over her and then successfully moved to be withdrawn, with no objection from any party. The Court of Appeals reversed, holding as follows:

"When a GAL is appointed in accordance with Rule 17 for a parent in an abuse, neglect, or dependency proceeding, or a termination of parental rights proceeding, it is the duty of the GAL to act “as a guardian of procedural due process for that parent, to assist in explaining and executing her rights.”. . .

GAL appointed pursuant to Rule 17 “has a duty to represent the party he is appointed to represent to the fullest extent feasible and to do all things necessary to secure a judgment favorable to such party.”. . .

party so represented. . . .” N.C. Gen. Stat. § 1A-1, Rule 17(e). Since the trial court determined that respondent-mother could not adequately represent her own interests and appointed a GAL to

represent respondent-mother pursuant to N.C. Gen. Stat. § 7B-602(c), the requirements of Rule 17 applied to the termination proceedings. Thus, the trial court erred by conducting the termination hearing without the presence and participation of a GAL for respondent-mother, and the trial court’s order terminating

respondent-mother’s parental rights to Amanda was invalid. Accordingly, we vacate the trial court’s order and remand the case for a new termination hearing that complies with the requirements

of Rule 17.

The full opinion may be found at http://appellate.nccourts.org/opinions/?c=2&pdf=2010/10-631-1.pdf.

Call for Abstracts: National Association of Counsel for Children

Now accepting abstracts:

34th National Child Welfare, Juvenile, and Family Law Conference, August 30 – September 1, 2011, at the Hotel del Coronado in San Diego, CA! To submit an abstract, please visit: https://naccchildlaw.site-ym.com/?AbstractSubmission. The deadline for abstract submissions is February 1, 2011. The NACC is soliciting abstract submissions on any topic related to child welfare, juvenile, or family law. Additionally, the NACC has identified the following topic areas we wish to incorporate at the conference:

CLOP / Office Management
Ethics
Funding Strategies
ICPC
ICWA
Immigration
Incarceration
Interview Skills
Mediation
Medical Aspects of Child Welfare
Non-Verbal Children
Older Youth (i.e. SSI, extended jurisdiction, ID theft)

Please note that the presenter will be responsible for travel and their own accommodations.