The newest edition of North Carolina Juvenile Code: Practice and Procedure will be available through Thomson Reuters Westlaw in the next few months. The proof copy has just been returned and it is now simply a matter for the final production process to come to its natural conclusion.
Readers will find an abundance of changes brought about by the North Carolina General Assembly in 2013. Among those changes included in the work include new statutes governing juveniles, include those relating to review and permanency planning hearings; the responsible individual list; guardianship for parents; and termination of parental rights, among others. Of course, the latest case law updates are included to assure that the work provides the most timely guidance of any publication in North Carolina.
While other publications have arrived on the scene in recent years purporting to provide practitioners with authoritative guidance with respect to the juvenile code, the fact remains that North Carolina Juvenile Code: Practice and Procedure is a title that has been trusted by attorneys all over North Carolina and the Southeast for over a decade. Moreover, no other publication can make the claim to comprehensive treatment of all aspects of juvenile jurisprudence, not just part of the Code as is chosen by some publications.
Choose the best--reserve your copy soon!
Wednesday 19 March 2014
Wednesday 12 February 2014
Relevant TPR Factors and Determining the Best Interest of a Child
During the adjudication stage of every termination of parental rights case, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a). Once this determination is made, the trial court then may proceed to the dispositional stage where a determination is made as to whether terminating the parents' rights is consistent with the best interests of the child. N.C. Gen. Stat. § 7B-1110(a).
In determining a child's best interest, the question arises as to what is to guide the court's dispositional determination. The statutory answer is that the court is required to consider certain enumerated factors set forth in N.C. Gen. Stat. § 7B-1110(a)which include (1) the age of the juvenile; (2) the likelihood of adoption of the juvenile; (3) whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile; (4) the bond between the juvenile and the parent;(5) the quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement; and (6) any other relevant consideration.
The critical factor then, is relevance: if a particular enumerated factor is relevant in the case before the court, then the court must consider that factor when deciding whether the child's rights will be served by terminating parental rights.In re J.L.H., __ N.C. App __, 741 S.E.2d 333 (2012).
But does this mean that the trial court must make findings regarding every enumerated factor? The short anser is in the negative: the Court of Appeals has recently clarified that consideration by a trial court of 7B-1110 factors does not amount to ". . .mak[ing] written findings with respect to all six factors; rather, as the plain language of the statute indicates, thecourt must enter written findings in its order concerning only those factors “that are relevant.” In re D.H., __N.C.App.__, __S.E.2d__(February 4, 2014). Once a court determines what factors are relevant, it should makign specific, written findings concerning them in its order.N.C. Gen. Stat. § 7B-1110(a).
Thus, to satisfy the statute, it is altogether sufficient if the trial court makes written findings about its over-all consideration of the 7B-1110 factors, noting specifically which factors it found relevant and then proceed to apply those relevant factors to justify its decision as to whethere termination is in the child's best interest.
But does this mean that the trial court must make findings regarding every enumerated factor? The short anser is in the negative: the Court of Appeals has recently clarified that consideration by a trial court of 7B-1110 factors does not amount to ". . .mak[ing] written findings with respect to all six factors; rather, as the plain language of the statute indicates, thecourt must enter written findings in its order concerning only those factors “that are relevant.” In re D.H., __N.C.App.__, __S.E.2d__(February 4, 2014). Once a court determines what factors are relevant, it should makign specific, written findings concerning them in its order.N.C. Gen. Stat. § 7B-1110(a).
Thus, to satisfy the statute, it is altogether sufficient if the trial court makes written findings about its over-all consideration of the 7B-1110 factors, noting specifically which factors it found relevant and then proceed to apply those relevant factors to justify its decision as to whethere termination is in the child's best interest.
Wednesday 22 January 2014
Voiding Relinquishments that are Older than Six Months Old
A permanent plan should be permanent in a juvenile case. That is, unless it doesn't work. In those cases where a plan of adoption was settled upon by the reviewing court and a necessary relinquishment cannot be obtained, N.C. Gen. Stat. 7B-909 permits the DSS to motion the matter back into court to have any previously obtained relinquishment rendered void. An order for such relief can only come after the agency gives at least 15 days advanced notice of its intent to the previously relinquishing parent. Further, it must be the case that the agency is taking no steps to terminate the non-relinquishing parent and that the relinquishment is at least six months old. At the hearing, the relinquishing parent has the ability to be heard on the issues of whether the relinquishment should be voided and the parent's plan to provide for the juvenile should the relinquishment tendered by that parent be rendered void.
North Carolina Statute 7B-909 appears, then, to be a way of recovering from a plan of TPR/Adoption which, in hindsight was ill conceived or was compromised by post plan change circumstances, such as adverse behavior by the juvenile which has disrupted placements, the discovery of adverse and severe medical conditions affecting the child which complicate adoption, the inability to place a child due to age and a lack of adoptive parents, or other such circumstances.
With the good, of course, there is always the bad and it should be noted that the statute does not provide an absolute win-win situation. For instance, a relinquishment from a parent that is rendered void makes more acute the possibility that the county voiding the relinquishment will seek child support from the parent. This is particularly troubling to a parent whose entire reason for relinquishing was based upon an agreement with social services that, in exchange for a relinquishment, stated that child support would be ceased and only the accumulated arrearages collected.
From the agency's standpoint, the situation is even more concerning. The original plan of adoption could only have arisen as a result of the court finding that the parent was not able to provide for the needs and care of the minor child, either at the time of the hearing or in the near future. Perhaps enough time will have elapsed and the relinquishing parent now has a greater sense of purpose and wherewithal to accomplish those things that need to be done for the child. As pleasing a scenario as this might be, it must definitely be considered to be an unlikely one. Placing a child back in the home of a parent who has for at least a year allowed a child to languish is not without probable downfalls. It all likelihood, it will spell further trouble for the child forced into this situation, which will in turn lead to a report and no doubt, further DSS involvement.
The moral of the story, to the extent that there is one, is to make sure the permanent plan in any case considers both the best and worst possible situations and that it has a way to deal with both. In the event that the situation is far worse than could have been imagined and resort must be made the General Statute 7B-909, care must be taken from the standpoint of both the relinquishing parent and the agency to avoid entry back into the malaise that previously characterised the case, the very conditions, that started the parties talking about relinquishment in the first place.
North Carolina Statute 7B-909 appears, then, to be a way of recovering from a plan of TPR/Adoption which, in hindsight was ill conceived or was compromised by post plan change circumstances, such as adverse behavior by the juvenile which has disrupted placements, the discovery of adverse and severe medical conditions affecting the child which complicate adoption, the inability to place a child due to age and a lack of adoptive parents, or other such circumstances.
With the good, of course, there is always the bad and it should be noted that the statute does not provide an absolute win-win situation. For instance, a relinquishment from a parent that is rendered void makes more acute the possibility that the county voiding the relinquishment will seek child support from the parent. This is particularly troubling to a parent whose entire reason for relinquishing was based upon an agreement with social services that, in exchange for a relinquishment, stated that child support would be ceased and only the accumulated arrearages collected.
From the agency's standpoint, the situation is even more concerning. The original plan of adoption could only have arisen as a result of the court finding that the parent was not able to provide for the needs and care of the minor child, either at the time of the hearing or in the near future. Perhaps enough time will have elapsed and the relinquishing parent now has a greater sense of purpose and wherewithal to accomplish those things that need to be done for the child. As pleasing a scenario as this might be, it must definitely be considered to be an unlikely one. Placing a child back in the home of a parent who has for at least a year allowed a child to languish is not without probable downfalls. It all likelihood, it will spell further trouble for the child forced into this situation, which will in turn lead to a report and no doubt, further DSS involvement.
The moral of the story, to the extent that there is one, is to make sure the permanent plan in any case considers both the best and worst possible situations and that it has a way to deal with both. In the event that the situation is far worse than could have been imagined and resort must be made the General Statute 7B-909, care must be taken from the standpoint of both the relinquishing parent and the agency to avoid entry back into the malaise that previously characterised the case, the very conditions, that started the parties talking about relinquishment in the first place.
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