In re A.P.: A Challenge to DSS Standing to File Juvenile Petitions Where Neither Parents or Child in County But Not in Conflict of Interest Cases

The North Carolina Court of Appeals recently reversed an adjudication in Mecklenburg County due to the fact that the Mecklenberg County Department of Social Services did not have standing to file a juvenile petition. In re A.P., __ N.C. App.__,__S.E.2d__(April 18, 2017). In reaching its holding, the Court of Appeals relied primarily on the fact that at the time Mecklenburg County filed its juvenile petition, the child in question neither resided in the county nor was the county of residence of the child’s parents. Id.

 

Given the significant importance the appeals court placed upon the ability of a county social services director’s ability to file a juvenile petitions, the question naturally arises as to what impact this will have when a county has a conflict of interest and where ultimate responsibility to file a petition may reside with a county that has neither the child’s parents in residence nor can claim that the child can be found in the county. The answer, as it turns out, is that the holding of In re A.P. does not apply to conflict of interest cases. But before one can get to this conclusion, a little background is in order.

 

The North Carolina Department of Health and Human Services recently revised its conflict of interest policy in an effort to bring it more in line with current ethical practice. Where a conflict arose under the old policy, for example, where a child welfare investigator in a county department of social services was related to a party who was the subject of a child welfare report, the initial screening, the investigation or assessment of the report, and any subsequent case management would be assigned to a sister county. See 10A NCAC 70A.0103

North Carolina Division of Social Services Family Services Manual. Volume I: Children’s Services Chapter VIII: Child Protective Services. 1410 Conflict of Interest. However, if the family risk situation later rose to the level where a juvenile petition needed to be filed, the petition would fall to the responsibility of the original county, regardless of the fact that a conflict of interest existed. Id. Under the new policy revised December 2016, the filing of any petition or seeking non-secure custody over a child in the original county remains with the county taking on the case due to a conflict of interest. Thus, once a case has been determined to be a conflict of interest for County A, the case is referred to County B which handles the matter to its conclusion.

Standing to file a juvenile petition normally falls to a director of a county where a child is found or where the child’s parents reside. N.C. Gen. Stat. 7B-101(10). Normally this is where In re A.P. would present difficulty for a county handling a conflict of interest case. However, it is vitally important to reference the statute governing venue. In as much as one consults this statute, one finds that standing is also conferred to a director handling a conflict of interest case, who has the ability to file the petition in either the original county where the conflict of interest arose or the county where the director’s agency is found. See N.C. Gen. Stat. 7B-400. Thus, North Carolina General Statute 7B-400 specifically provides both standing to the conflict of interest director of social services as well as venue in either the director’s home county or the county where the parents reside or where the child could be found.

No doubt, some out there will immediately argue that 7B-400 is a venue statute and therefore has nothing to do with standing or subject matter jurisdiction and that In re A.P. applies to all cases, whether there is a conflict of interest of otherwise. Unfortunately, this position is not consistent with the holding of the Court of Appeals in this decision which quotes extensively (but not completely) from 7B-400 to support its over-all position that Mecklenburg County DSS did not have standing to file its petition. To quote the Court of Appeals, "Article 4 of the North Carolina Juvenile Code sets for the requirements for venue and the proper parties of petitions." (emphasis added). If we can rely on the court's opinion regarding the function of Article 4 based on the excerpted section the court relied on in the opinion , then one can safely rely on the whole of Article 4 which defines the proper parties of petitions to include directors of counties handling conflicts of interest.

Admittedly, there is some incongruity between the definition of a county social services director found in North Carolina General Statute 7B-101(10), which does not provide for the contingency of handling a conflict of interest, and 7B-400, which expressly does do so. This incongruency will, hopefully, be addressed by subsequent legislative amendment. However, in the meantime, those counties handling conflict of interest case for a sister county need not fear an absence of standing or venue. The same is appropriately (if not perfectly) provided for by the General Assembly in the existing legislative framework of the Juvenile Code.