Every juvenile case should end this way: after an
adjudication and disposition where a child is removed from the home, the parent
or parents work diligently to follow the out of home family services case plan
developed by the DSS. Conditions in the home are remedied and a trial home
placement ensues. The successful trial home placement then leads to conferral
of custody upon the parent or parents. The end.
Those in the area of child welfare know this scenario is an
all-too rare phenomenon and even when parental custody is restored, the juvenile
court is often reluctant to terminate its jurisdiction.
In reality, juvenile courts should consider terminating
their jurisdiction more often, at least until there is legislative reform are
subsequent litigation on the jurisdiction of juvenile courts. While it
certainly remains within the power of the juvenile court in a case where it has
returned custody but retained jurisdiction to enforce its prior orders through
the contempt power, the reality is that juvenile courts, confronted by bad
parental behavior, are likely to do more than merely entertain contempt. More
likely than not, juvenile courts in such circumstances are likely to alter
previous juvenile orders to change custody, something not permitted by statute
or current case law.
North Carolina General Statute 7B-401 (b) states that if a court
has (a) retained jurisdiction over a juvenile whose custody was (b) granted to
a parent and (c) there are no further scheduled periodic reviews of the
placement, then the provisions of Article 8 shall apply to any subsequent
report of abuse, neglect, or dependency determined by the director to require
court action pursuant to North Carolina General Statute 7B-302. N.C. Gen. Stat.
7B-401(b); In re T.P.,
__N.C.App.__,__S.E.2d__ (July 5, 2017).
Article 8 governs the procedures relevant to
hearing an adjudication of a juvenile petition. Thus, it seems that once all of
the requirements of North Carolina General Statute 7B-401(b) are satisfied, a
subsequent report of abuse, neglect or dependency triggers the requirement to
file a new petition if the court is the exercise its jurisdiction properly. In re T.P., __N.C.App.__,__S.E.2d__
(July 5, 2017).
This is the paradoxical conclusion that is has been the law
of the land since 2013, so says the North Carolina Court of Appeals and is now the
definitive word since no petition for certiori
has been filed with the North Carolina Supreme Court.
I choose to use the word “paradoxical” because it is a
settled principle of juvenile law that, unless the juvenile court terminates
its jurisdiction on its own or it is terminated by virtue of the child reaching
the age of majority, the court’s jurisdiction continues. See N.C. Gen. Stat.
7B-201. To have jurisdiction, according to Black’s Law Dictionary is to the “.
. . legal rights by which judges exercise their authority.” Black’s Law Dictionary 766 (5th
ed. 1979). The Juvenile Court’s authority to act includes “. . . any case
involving a juvenile who is alleged to be abused, neglected, or dependent” as
well as “. . .jurisdiction over the
parent, guardian, custodian or caretaker of a juvenile who has been adjudicated
abused, neglected, or dependent” provided they were served a summons, waived
service, or automatically became a party pursuant to North Carolina General
Statute 7B-401.1 (c) or (d). N.C. Gen. Stat. 7B-200. Once the light switch is
turned on, the Juvenile Court seems to continue to have authority until the
court either turns off the switch or the age of the child turns the switch off
for the court. The holding of In re T.P.
states otherwise, requiring that the juvenile court be divested of its ability
to take any action or exercise any authority until a new adjudication takes
place, making the juvenile twice abused, neglected or dependent.
Perhaps as a justification for the Court’s holding , it
might be said that the North Carolina Court of Appeals has imported the statutory
due process requirements that relate to juvenile delinquency proceedings and
applied them in the context of child welfare. The problem with such a
justification is that, while both child welfare and delinquency statutory
authority are both contained in Chapter 7B of the General Statutes, for at
least one significant reason, such analogization doesn’t work because juvenile courts
in juvenile delinquency cases end up with much greater authority than those
handling cases involving abuse, neglect or dependency.
Juvenile adjudications, whether those of abuse, neglect, or
dependency or delinquency, are status adjudications. Once a child has been
deemed to partake of a particular status, that status follows the child until
the child’s case is ended by the termination of the court’s jurisdiction. Using
the juvenile delinquency statutes as a guide, it is clear that this is so, even
if the juvenile continues to incur more charges which lead to additional juvenile
delinquency petitions. For evidence of this, see N.C. Gen. Stat. 7B-2510, which
provides that even when a juvenile who is on probation violates the terms of
the juvenile’s probation, the court has jurisdiction to extend probation,
modify the terms of probation, or order a new disposition while at the same
having the obligation to adjudicate any new petition of delinquency filed with
the trial court. Thus, North Carolina General Statute 7B-401(b), by preventing the
trial court from reviewing and modifying a custodial placement or ordering a
new disposition, doesn’t even allow the juvenile court authority to act in
child welfare cases to the extent that it
could in a delinquency case. As George Orwell might say, all juvenile courts
are equal but some juvenile courts are more equal than others.
The limits placed on the authority of the trial court by
North Carolina General Statute 7B-401(b) are illogical, inconsistent with
existing statutes, and, as the statute has been interpreted by the North
Carolina Court of Appeals in In re T.P.,
contrary to the norms of juvenile practice in North Carolina. It would be this
author’s plea that the North Carolina Supreme Court take up the case (perhaps
through its own inherent powers to review the constitutionality of statutes)
and give careful consideration to invalidating 7B-401(b) or, barring this, that
the legislature give this statute more thorough and proper consideration.
