In re T.P. and N.C. General Statute 7B-401(b): Divestment of Jurisdiction of the Juvenile Court?

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 (5^th 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.