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.