In re M.B Part II: Parent Rights and Responsibilities Lost when Third Party Custody or Guardianship Conferral is Permanent Plan?

One of the express goals of the North Carolina Juvenile Code is to seek to safely prevent the need for removal of children from their homes when issues of risk arise within those homes. Sometimes in is not always possible to adequately protect children in their own home due to inadequacies of the home, the social failings of the parents, or both. In such cases, third party caretakers are next enlisted by county departments of social services, at first relatives or persons with kinship, to provide these at-risk children with a safe and appropriate home. When even these avenues fail to provide a safe and appropriate home environment, the children are placed in foster care.

It is a sad but all too true fact that in the majority of cases that are filed in North Carolina Juvenile Court’s, once a child is removed from a home, there is a very small chance that the child will ever be successfully reunited in the home of the parents. Very often, the child will find permanence with relatives or others who have provided long term child placement.

The question arises: if a child is removed from a parents home, if the plan of care changes from reunification with a parent and the permanent plan is custody of guardianship with a relative or court-approved care-taker, what rights do the parents of the child still retain?

North Carolina General Statute 7B-906.1(e)(2)(2015)  seems to offer some guidance on this issue where it provides that:

(e) At any permanency planning hearing where the juvenile is not

placed with a parent, the court shall additionally consider the

following criteria and make written findings regarding those that

are relevant:

. . .

(2) Where the juvenile’s placement with a parent is unlikely

within six months, whether legal guardianship or custody with a

relative or some other suitable person should be established and,

if so, the rights and responsibilities that should remain with the

parents.

This statute was recently construed by the North Carolina Court of Appeals in In re M.B., __N.C.App.__,__S.E.2d__(May 15, 2017) in a case where guardianship had been awarded to a paternal great-grandmother  and the permanent plan was changed from reunification to guardianship. In that case, the court held that, notwithstanding  the language of North Carolina General Statute 7B-906.1(e), there was no statutory obligation on the trial court, apart from the issue of visitation, that required the trial court to specifically enumerate every possible right and responsibility that the parents would retain in light of the court’s award of guardianship. Id.   More surprising still was the additional holding of the court that “. . .. . when a child is placed in the custody or guardianship of another person, the parent’s rights and responsibilities, apart from visitation, are lost if the trial court’s order does not otherwise provide.” Id.

 

This latter interpretation of N.C. Gen. Stat. 7B-906.1(e) by the Court of Appeals is problematic for several reasons. First, the award of custody to a third party such as a county department of social services is available as one of several dispositional options available to the court following adjudication. See N.C. Gen. Stat. 7B-903. Guardianship, on the other hand, can be awarded at any stage of a juvenile proceeding. See N.C. Gen. Stat. 7B-600. Of course, prior to awarding custody or guardianship to a third party, the court must find both that the home of the parent is inadequate to the task of providing safely for the needs of the child, that the juvenile requires additional supervision beyond that provided by the parents and that the same is consistent with the best interests of the juvenile. N.C. Gen. Stat. 7B-600. Guardianship conferral also requires that the court find that the prospective guardian understands their responsibility and that the guardian is both physically and financially able to provide for the needs of the juvenile. N.C. Gen. Stat. 7B-600(c); In re M.B., __ N.C. App. __, 782 S.E.2d 785 (2016).

 

All that being said, it has never been the case that in the absence of a specific judicial determination that the parents would lose all their rights and responsibilities. For example, federal law requires parents to participate in and sign paperwork necessary to effectuate a child’s Individualized Education Plan (IEP) , even when a child is in the custody of a county department of social services and is placed in foster care. See 20 U.S.C.A.§1414(d). Moreover, the Juvenile Code provides a host of other examples where parental rights or responsibilities remain even where a third party such as with the department of social services has custody of a child. See N.C. Gen. Stat. 7B-904(a) (potential obligation for medical, surgical, psychiatric, or psychological treatment costs); N.C. Gen. Stat. 7B-904(d) (potential child support); N.C. Gen. Stat. 7B-1000 (right to seek modification of trial court order); N.C. Gen. Stat. 7B-1001 (right to appeal trial court order).

 

Outside of these considerations, it should be noted that in every case where a third party custody conferral or award of guardianship occurs, the trial court must retain jurisdiction over the case until the child reaches the age of 18. See N.C. Gen. Stat. 7B-201. As such, the parents, as parties to the juvenile action, retain a right to procedural due process and must be sent notice of any subsequent juvenile proceeding regarding the child. Thus, it seems unlikely that there is a legally sufficient basis for the Court of Appeals most recent holding in In re M.B.,that, absent a mandate by the trial court, a parent loses all substantive and procedural rights and responsibilities regarding their child outside of visitation.

 

Admittedly, the Court of Appeal’s holding seems to be confined to custody transfers or conferral of guardianship at or following the initial permanency planning hearing. Thus, the impact of the holding may be mitigated to some extent in that it may not be intended to apply to proceedings prior to the first permanency planning hearing. But while this may mitigate the problematic nature of the holding, it doesn’t make all the problems go away. Perhaps the most glaring problem that remains is the situation where guardianship has been conferred and at a later date the guardian either refuses to perform the duties required under N.C. General Statute 7B-600 to provide for the needs of the child-ward or is unable to do so. Under N.C. General Statute 7B-600, any party may seek a hearing in such circumstances to remove a guardian and make such other orders as are necessary from the protection of the juvenile. See N.C. Gen. Stat. 7B-600. In so doing, the trial court must undertake the analysis provided for by N.C. General Statute 7B-906.1, looking first at whether the child may be safely returned to the home of the parents. Under the most recent holding of In re M.B., the parent’s rights to such due process would be eliminated, absent its preservation by the trial court at the time the guardianship was awarded.

 

The better view (and better holding) would be one that affirms that parental rights remain inchoate in the circumstances where there has been an award of custody or guardianship to a third party. Under such a theory, the rights of the parents, like a junior lien on property subject to a superior lien, would remain in abeyance until such time as the superior custody or guardianship of the third party is eliminated or otherwise modified. Only when the custody of guardianship of a third party is dissolved or otherwise mitigated would the inchoate rights of the parents be able to be actualized. Such a view avoids the draconian consequences that result from the most recent holding of In re M.B.. Moreover, such a theory has greater resonance with both other areas of the Juvenile Code (i.e. N.C. Gen. Stat. 7B-201(b) (termination of court’s jurisdiction revives inchoate rights of parents as they existed prior to juvenile proceeding) other areas of the law such as property law and secured transactions where multiple claims of legal or equitable interest can be recognized and accommodated outside without the need to resort to an “all or nothing (or nearly all or nothing) proposition”.

 

Unfortunately, no judge dissented among the Court of Appeals panel that upheld the trial court’s decision in the most recent decision in re M.B., and thus absent the granting of a writ of certiorari by the North Carolina Supreme Court or the future revision or re-interpretation by the Court of Appeals itself,
the most recent holding in In re M.B. is sure to cause trouble for parents as well as trial judges who aren’t careful in specifically setting down the rights and responsibilities of parents where the court seeks conferral of child custody or guardianship upon third parties.