Temporary Placement Arrangements in Juvenile Cases can be Legally Secure Even Without Court Ordered Custody

 One of the express purposes of the North Carolina Juvenile Code is to “provide services for the protection of juveniles by means that respect both the rights to family autonomy and the juveniles’ needs for safety, continuity, and permanence.” N.C. Gen. Stat. 7B-100(4). Furthering this goal, social services agencies,  when confronting family situations where children are at risk, often make use of temporary safety providers. Such temporary safety providers may be relatives, people with kinship, or simply family friends. The North Carolina Division of Social Services Family Services Manual specifically approves of such temporary safety arrangements but is quick to point out that such arrangements are not “legally secure” and should not be considered “a change in residence.” NC Div. Soc. Svcs. Fam. Svcs. Man. Chapter V (2016). While in generally it is true that such arrangements are not legally secure and do not afford a child placed in such an arrangement with legal permanence, it is important to recognize that a temporary safety arrangement can be made into a legally sufficient arrangement such that further involvement by a county social services will be no longer warranted and no need will continue to exist to file a juvenile petition will be warranted.

How is this possible?

The answer depends upon the degree to which the temporary safety provider and the juvenile’s parents wish to make the juvenile’s placement arrangement permanent. On the far end of the safety continuum, a mere safety agreement and a placement in a temporary home is altogether insufficient to confer legal permanence. The placement provider will have neither the means to provide for the upkeep of the child nor the legal authority to act on behalf of the child for either routine needs (i.e. school enrollment) or those of a more emergency nature. On the other end of the continuum, a Chapter 50 action for child custody filed by the temporary placement provider more than adequately provides for the legal security of a child placed by parents and a county social services agency where insurmountable safety risks exist in the parent or parents’ home.

Admittedly, the middle ground between these two poles on the legal permanence continuum is less clear cut. As such, county social services agencies, parents, and parent’s attorneys should work on a solution that, considering the totality of the circumstances surrounding the child, provide for the juvenile’s safety while at the same time balances the need to provide for family autonomy. The first necessary ingredient in developing a robustly safe temporary placement arrangement is the conferral of the power of attorney by the parents upon the temporary placement provider. This POA should address not only the conferral of authority for making necessary medical decisions where the parents can’t be immediately consulted but also provides authority to allow the child to enroll in school, participate in extracurricular activities, and provide for such other normal childhood activities that the juvenile would enjoy if the juvenile remained back in the parent or parents’ home.

Second, the parents should provide, at least temporarily, a basis for temporary child support. Such support can provide for the child’s economic needs while at the same time assuring that the juvenile’s placement does not become an economic burden upon the temporary placement provider.

Third, the parents and the temporary placement provider should clearly articulate two plans to deal with the issues that led to the placement of the juvenile outside the home. The first should contemplate a diligent plan of exerted effort to follow the safety plan created by the county social services agency to reduce risk in the parent or parents’ home to the child. If the issues are substance abuse related, then adherence to substance abuse prevention treatment recommendations and random drug screens will be essential to making the first plan a reality. If the issue is intransigence or economic instability, then obtaining a safe, appropriate home and steady gainful employment will become the focus of critical efforts. The second plan should contemplate what should happen if, after a reasonable period of time, the first plan fails. A child cannot remain in limbo and county social services agencies cannot wait endlessly for a parent to get their affairs in order. The second plan, therefore, should set a firm date for when more permanent arrangements should be made by the parents to either accomplish objectives designed to reunify their child in their home or, in the alternative, provide for legal security for a juvenile placed out of the home. If the parents (1) have not previously sought to disrupt a placement; (2) have provided a POA to the placement providers; (3) are providing on-going child support; and (4) there exists with the temporary  placement all hallmarks of permanence (i.e. the child has been regularly attending a particular school, is bonded to the placement providers, has connections in the community, and/or expresses a strong desire to remain in the placement which is not contravened by the parents) then it should be legally possible to construe such a temporary placement arrangement as a permanent placement arrangement that is both socially and legally secure.

While certainly the N.C. Department of Health and Human Services would most likely not agree with the above-stated assessment of what might constitute legal permanence, the objections given almost always relate to the fragile nature of parent's power of attorney, which admittedly, may be revoked in an instant. While one can grant hypothetical and sometimes practical truth to such a claim, the real world apply demonstrates that POA's succeed overwhelmingly more than they fail. Powers of attorney are at the heart of almost every activity that people engage in on a daily basis. A POA allows the mechanic to fix a car, allows a teacher to take a child on a fieldtrip, and provides your cellphone provider to charge a credit card account. Certainly, individuals can revoke their consent, and sometimes they in fact do so. Nonetheless, life’s activities which rely on conferred agency go on for the most part unabated, thus allowing for the car to be repaired, the fieldtrip to be taken and the cellphone bill to be paid. The message for DHHS naysayers is clear: rather than categorically ruling out a power of attorney as a tool toward establishing legal permanence, grounds for acceptance of POA's exist if one takes a more constructive, evidence based approach. Thus, if a parent exhibits a proclivity toward revoking consent to act on behalf of a child shortly after granting the same, then as a matter of induction, any authority conveyed is shaky and is not legally a secure basis for establishing permanence for a child. If, on the other hand, a parent does not have a history of revoking consent, then it is fairly safe to say that a placement arrangement built upon a parental agreement backed up by a lack of interference with the placement could constitute the basis for assessing legal permanence in a temporary placement provided that the totality of the circumstance affecting a child’s placement additionally leads to an assessment that legal permanence exists.

North Carolina Juvenile Code: Practice and Procedure 2017 Edition Now Available

The newest edition of North Carolina Juvenile Code: Practice and Procedure is now available through Thomson-Reuters at the following link: http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/North-Carolina-Juvenile-Code-Practice-and-Procedure-2017-ed/p/104642950. First published in 2003, the 15th annual edition includes the following new and updated features:

• A new section on caretakers.

• A new section on diversion of a juvenile delinquent or undisciplined juvenile into the custcounty department of social services. 
• A new section on the unlawful transfer of custody of juveniles.

• A new section on character evidence.
   
• A new section on expunction of juvenile records or previous delinquency and undisciplineadjudications.

• Comprehensive updates on new legislation and case law affecting juvenile law in North Carolina.
   
• Updated forms.

As with past editions, this edition provides the same comprehensive, up to date treatment of juvenile law in North Carolina which continues to be unmatched in its coverage of the law regarding child welfare, juvenile delinquency and undisciplined actions, termination of parental rights actions, and emancipation. Accept no substitutes!

In re J.S.C.: Consent Adjudications Not Subject to Clear, Cogent and Convincing Standard

In an opinion that I am sure surprised many, the North Carolina Court of Appeals recently delineated in the case of

In re J.S.C. ,__N.C.App.__, __S.E.2d__ (COA16-1222 (2 May 2017))

the distinction between the quantum of proof required in a consent

adjudication as opposed to an adjudication by hearing.

The case originated in New Hanover County and involved a child who had suffered significant head trauma abuse and neglect. New Hanover County DSS filed a juvenile petition alleging that the minor child was abused and neglected. On 8 August 2016, both respondents appeared in court and tendered a “Consent Order on Adjudication” which was signed by all parties and their counsel and provided further that

the parties “have stipulated and agreed to the entry of this Order which

provides for the following facts, conclusions of law and order” adjudicating [the minor child] as neglected and abused."

Following Disposition, both the parents appealed, the father later withdrawing his appeal. The mother's surviving appeal referenced one particular error: at no time either in court or through a written order did the trial court establish that the consent's findings were arrived at by "clear, cogent and convincing evidence." In the context of adjudicatory hearings, failure to make such a determination has been fatal. See

In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000); In re D.R.B., 182 N.C. App. 733, 739, 643 S.E.2d 77, 81 (2007). However, as the Court of Appeals has pointed out, a consent adjudication is not an adjudication by merely another name.

As the court pointed out in the text of its opinion, since the consent adjudication did not engage in ". . . an adjudicatory hearing, the court did not receive or weigh evidence, assess the credibility of witnesses, or otherwise engage in the process of fact-finding." Accordingly, ". . . [t]he court thus had no occasion to apply the “clear and convincing evidence” standard of proof or any other standard." N.C. Gen. Stat. § 7B-805 on its face applies only to adjudicatory hearings, not adjudicatory consent hearings. See N.C. Gen. Stat. § 7B-805. With that said, the appellate court declined  to extend  In re Church to find reversible error based on the failure of the consent adjudication order to state the evidentiary standard contained in N.C. Gen. Stat. § 7B-805.

North Carolina Juvenile Justice Reinvestment Act (HB 280): A Missed Opporunity For Substantive Reform of the Juvenile Justice System

North Carolina Supreme Court Chief Justice Mark Martin has recently announced  the Judicial Branch's support of the Juvenile Justice Reinvestment Act, HB280. The Bill seeks reform the North Carolina justice system's response to children and teenagers under the age of 18, most notably by prosecuting 16- and 17-year-olds non-violent offenders in juvenile court rather than in adult criminal court. According to statistics from the Bill's supporters , 96.7% of all 16-17 year old offenders charged with misdemeanors and non-violent felonies. With that in mind, Martin made the additional claim that if passed, HB280  will help "strengthen families and [will] likely to result in lower recidivism, less crime, and increased safety," as well as ". . . economic benefits for the state of North Carolina." Examining the text of the proposed legislation, it is immediately clear how the State of North Carolina will save money by diverting juvenile nonviolent offenders from the well-worn path that inevitably leads to prison. With fewer juveniles in this stream of dismal commerce, the numbers incarcerated will inevitably go down, translating to cost savings both in the short and long run. However, one is hard-pressed to find a basis for the other lofty claims made by Justice Martin. The Bill does nothing on its face to enhance or additionally fund existing programs designed to provide treatment to 16 and 17 year olds. Thus, the shop-worn dispositional remedies of community based punishment, wilderness camps, diversion to DSS custody and for the worst offenders, commitment to "youth development centers" remain the sole basis to "strengthen families" and "reduce recidivism". Anyone who works in the North Carolina Juvenile Justice System knows how challenging it is to make effective use of the existing dispositional alternatives provided by the Juvenile Code. Juvenile offenders who have reached 16 and 17 years of age in many cases have already been in the system for several years. These juveniles are, in many cases, jaded and un-amendable to or unwilling to benefit from therapeutic intervention. Moreover, these juveniles are also well aware that juvenile court imposes a relatively low opportunity cost upon their libertine and riotous behavior. Thus, the mere threat that at most a juvenile could be held in secure custody for 14 days, or be subject to house arrest, or get sent off to wilderness camp may hardly register as any form of deterrent. If legislators wish to achieve real and meaningful reform of the Juvenile Justice System, they must address two issues that are not at all mentioned in HB 280. First, the deterrence formula that is set forth in North Carolina General Statute 7B-2506 (Dispositional alternatives for delinquent juveniles) and 7B-2508 (Dispositional limits) needs reconsideration. The current Juvenile Code prevents a District Court Judge from imposing the full range of dispositional alternatives upon Level I offenders, the very offenders who most likely can be deterred from future acts of delinquency if they are hit hard with both consequences and therapeutic intervention at the earliest stage of their potential criminal career. Instead, North Carolina saves the more substantive dispositional alternatives--placement in a residential treatment facility, intensive probation, regimented training programs, and up to 14 days of juvenile detention--for Level II and Level III offenders. While this type of sentencing has the merit of being proportional, such a policy goal is hardly beneficial to society when low level dispositional sentencing leads only to acclimatizing the juvenile to the juvenile justice system and retards the effectiveness of any subsequent higher level punishment. Second, greater emphasis needs to be made to afford juvenile offenders increased access to community based mental health services. Too often inadequate funding streams cripple juvenile court counselor's ability to access residential placements and critical mental health treatment. As a result, even Level II and III juvenile offenders who could benefit from residential treatment or enhanced mental health services are not able to gain access because there aren't enough beds available at a residential treatment facility. Where access to a treatment facility is available, such a resource tends to be reserved for the worst offenders because financial resources are scarce. This very phenomena has led in years past to increased numbers of older juvenile offenders being diverted to DSS custody, the perception being that social services had greater resources available and could more adequately provide treatment. The problem with such an idea is that, even if it were once true that the county DSS had greater resources, those days are long gone with now record numbers of children in foster care and county social services budgets stretched to their limits. While no one denies that financial responsibility is a good thing in government, that fact remains that making public policy decisions can not be viewed exclusively through the lens of the accountant. As in business, sometimes you have to spend money if you are going to make money. If North Carolina is truly going to strengthen families and reduce recidivism among 16 and 17 year old juvenile delinquents, it needs to make a sizeable financial investment aimed at developing solutions that will deter delinquency, get at the root cause of the delinquency, and provide a basis for reform and rehabilitate the juvenile offender so that the likelihood of re-offense is diminished. House Bill 280, with its exclusive emphasis on saving money by narrowing the definition of who can go to prison, fails significantly in this regard.