The 14th Amendment Equal Protection Implications of Social Services Conflicts of Interest Policy

Conflicts of interests often arise within the context of a county social services work investigating reports of abuse, neglect or dependency. Particularly in smaller communities or rural counties, it is not uncommon for a county department of social services to receive a report concerning a social services employee’s relatives or associates. More rarely, these reports involve social services employees. In such case, the integrity of an assessment or investigation will rightly be called into question if arrangements are not made to conflict the case out, thereby assuring that the assessment or investigation is impartial and not the product of favoritism toward the social services employee or their family.

NC Administrative Codes 10A NCAC 70A .0103 and 10A NCAC 70E .1105 address conflicts of interests that occur with social services agencies in the State, requiring such agencies  to “. . .refer reports of abuse, neglect, and/or dependency to another county child welfare agency when there is a [conflict of interest]. ” The following relationships can create a conflict of interest:

a. Agency (county child welfare agencies) employees,

b. An agency operated daycare facility (null after January 1, 2016),

c. A caretaker in a sole-source contract group home,

d. County Commissioner,

e. County Manager,

f. Foster parent supervised by the county,

g. Governance structure,

h. Members of the board of directors,

i. Member of the Board of Social Services, or

j. Relatives of agency employees (which includes the  great-great aunt, nephew, niece, first cousin, stepparent, stepbrother, stepsister and the spouse of each of these relatives).

Other occasions in which a conflict of interest might arise is when a report involves  (1) a child’s parent/caretaker who is an incompetent adult and who is a ward of that child welfare agency; (2) a minor in foster care who is also a parent/caretaker; or (3) when in the professional judgment of the county agency director, the agency would be perceived as having a conflict of interest. See 10A NCAC 70A .0103.

Once an agency determines a conflict of interest exists, the agency is required to “. . .immediately request assistance from a partner county child welfare agency that would address the conflict of interest]  or reduce the perception of a conflict of interest.” North Carolina Division of Social Services, Family Services Manual, Volume I: Children’s Services, Chapter VIII.1416: Child Protective Services (2016). The partner county, once confirming that a conflict of interest does exist, then becomes responsible for the case in its entirety from that point on, from conducting the assessment or investigation, to sending notices, to filing a petition and seeking non-secure if imminent risk is presented to a child subject to an assessment or investigation. North Carolina Division of Social Services, Family Services Manual, Volume I: Children’s Services, Chapter VIII.1416. III(B)(2) (2016).

At this point, one may be asking why all this is important.

The simple answer is that in child welfare cases, the integrity of child welfare investigations have 14^th Amendment Equal Protection implications that can be very real for children, let alone the parents of children who find themselves in Juvenile Court.

To illustrate this claim, it will help to use a concrete example.  Suppose a report is received regarding an employee of social services and that report was not conflicted out. Suppose further that the investigation was undertaken, the received report was substantiated, and a juvenile petition was filed. While certainly it might appear that the agency treated the report just like any other report received, a healthy skepticism is in order which should give rise to few questions: How does one know if the allegations in the petition weren’t watered down to favor the employee?  Moreover, assuming the matter makes its way past adjudication, how does one know that the recommendations made at Disposition aren’t going to be minimized so that the employee can easily sail through the court process and end the oversight of the county social services agency? The fact is that one can never know.  And if a “soft touch” (which may simply be unintentional and even unconsciously done) is being afforded a social services employee as a result of their relationship with persons at the agency, how does this square with notions that all persons are afforded the EQUAL protection of the law? While this has implications for parental rights, it is most important to focus on the implications for the child who is the subject of the report and the Juvenile Petition: is this child being adequately and appropriately protected when compared to the child’s peers?  The answer in all likelihood is that equal protection is not being afforded to the child which is a violation of the child’s constitutional rights.

It is important to note at this juncture that the conflict of interest protection afforded by the North Carolina Administrative Code is presently being eroded by arguments which would extend the holding of In re A.P., __N.C.App.__,__S.E.2d__(2017)  to conflict of interest cases (and for that see the several references to that case in this blog). As a result, counties are being asked by the State, for the sake of obtaining subject matter jurisdiction over an abused, neglected, or dependent child, to actively take a role in filing petitions in cases in which there has previously been determined to be a conflict. The State's justification is always the same:  that case law trumps policy, which surely it does in most contexts. However, counties are being asked to violate the very regulations that the State has set in place to assure that counties aren't handling cases where there is a conflict. One should reasonably ask, should the State setting policy which it expects county social services agencies to violate? Moreover, one should question the State's justifications for counties getting involved with their conflict cases. While case law may trump regulations, can it be equally said that case law trumps the 14^th Amendment Equal Protection rights of a child?


I think the answer to this is clearly in the negative (and I am sure that a cartload of plaintiff’s lawyers who have been itching to prosecute a §1983 claim would agree).

The Debate Over In re A.P. Continues Over Whether the Holding Applies to Conflict of Interest Cases

The battle of the interpretation of In re A.P. (see 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 posted here 6/20/17)   continues on and with it, the mind numbing task of determining whether a county has standing to file a petition with regard to an abused, neglected, and/or dependent child, particularly in the case where a conflict of interest exists in the originating county.

In the past few months, there has been an abundance of opinion offered on the subject. One continuing feature of the resulting discussion has been this:

The people arguing the loudest about whether a county does or does not have standing appear to have not read the actual text of the decision very closely.

So what does In re A.P. actually say about whether a county taking a conflict of interest case for another county has subject matter jurisdiction to file a petition for the conflict of interest county?

The answer is loudly, and unequivocally . . .NOTHING.

In re A.P. did not involve a conflict of interest case. The text of the holding in In re A.P. does not mention conflicts of interest cases because that fact pattern was not before it. Notwithstanding this, there are a number of individuals out there that are positively convinced that the case does cover conflicts of interests; They would bet the farm. Moreover, their confidence takes on a sort of misplaced arrogance when you talk to them, with a didactic tone that would not be out of place in an 8^th grade English classroom.

Unfortunately, these voices, earnest as they might be, are wrong.

(Or at least until the Court of Appeals says otherwise).

Here’s why:

At its heart, In re A.P. stands for the proposition that a county only has subject matter jurisdiction to file a juvenile petition where either a child is found or where the juvenile resides. To reach this conclusion, the Court of Appeals make reference to N.C. General Statute 7B-400; 7B-401.1(a); N.C. Gen. Stat. 153A-257(a)(3); and definition of director found at N.C. General Statute 7B-101(10). A director is the individual who oversees the county social of services in the county where the juvenile is found or where the juvenile resides. A juvenile “resides” wherever the legal residence of the parent or relative with whom the child resides, or in the alternative, where the child has the same residence as that with whom the child resides, regardless of the affinity biologically or otherwise with the child. See N.C. Gen. Stat. 153A-257(a)(3).   In a non-conflict situation, only a director (or the director’s representative) in the county where the juvenile is found or where the juvenile resides has standing to file a juvenile petition. See N.C. Gen. Stat. 7B-101(10).  And it is important to note that the text of N.C. General Statute 7B-400 doesn’t use the word county, but uses the term district. So when interpreting the requirement of In re A.P. to file where the child is found or resides, it is important not to make the mistake of looking to the county but to the wider district which can involve more than one county. See N.C. Gen. Stat. 7B-400(a).

So far so good.

But when there is a conflict of interest, the definition of director changes and with it the breadth of standing to file a petition. Not only is the director the individual who oversees the county social of services in the county where the juvenile is found or where the juvenile resides but the director is also the director in the assessing county handling the case due to a conflict of interest. See N.C. Gen. Stat. 7B-400(b). Don’t believe it? Then look at the words of the text in In re A.P.:

Article 4 of the North Carolina Juvenile Code sets forth the requirements for the venue and proper parties of petitions. . .”

The Court of Appeals in In re A.P. then goes on to cite N.C. Gen Stat. 7B-400(a) and 7B-401.1.

So yes, a venue statute not only govern WHERE to file but also WHO can file. Counterintuitive? Yes. But that is the textual holding of decision.

So subject matter jurisdiction in a conflict of interest case is obtained by a director (or director’s representative) or the conflict of interest director (or the conflict of interest director’s representative) filing a juvenile petition in the district where the juvenile is found or resides.

[ENTER A CRITIC, CENTER STAGE LEFT]

“But isn’t that mere conflation,” says one person out there, and therefore can’t we ignore it?” Well, I wouldn’t think it a great strategy to challenge the judges of the court of appeals of being flip, especially when each decision is thoroughly discussed in conference before initial publication and again prior to the mandate. I think it fairly safe to say that when the panel in In re A.P. references all of Article 4 as a means of determining both venue and the proper parties to an action, it means all of Article 4.  

So what is a county in a conflict of interest case to do? If there is a genuine issue of a child not residing in the district where the child is found or resides, or where a director other than the original director or a conflict of interest director filed the petition, then the case must be dismissed: there is no subject matter jurisdiction. In this case, a county DSS could dismiss the petition, make arrangements to move the child so that the child is actually found in the District in question, and refile.

Otherwise, plow ahead. If your trial court dismisses the case for lack of subject matter, appeal it and ask for a stay.  If not, there is certainly the issue that the case may be appealed later (as the issue of subject matter can be raised at any time) and this may regrettably delay permanence for the child who is the subject of the petition.

Regardless, this issue must be resolved one way or another and the only way that will happen is for either the legislature to act to clarify the holding of In re A.P. or for the Court of Appeals to do so when the matter has been properly appealed. The latter requires a bit of courage and resolve that has thus far not shown itself.

Any takers?

The County Social Services Agency's Burden Under ICWA and N.C. Chapter 7B to Identify Indian Children.

What burden falls upon a county DSS to ascertain whether a child is an “Indian Child” as defined by the Indian Child Welfare Act?

Unfortunately, there is no overt guidance to be found in the Juvenile Code.

The closest to such guidance can be found at North Carolina General Statute 7B-200 (jurisdiction) which provides subject matter jurisdiction to the District Court “over any case involving a juvenile who is alleged to be abused, neglected, or dependent” and  “[p]roceedings to terminate parental rights.” N.C. Gen. Stat. 7B-200. This jurisdiction is subject to one essential caveat: that state conferred jurisdiction not be pre-empted by federal law, specially the Indian Child Welfare Act (ICWA) which governs Indian children, as a specific subset of juveniles who might otherwise fall within the jurisdiction of a North Carolina District Court.

According to ICWA, an Indian Child is any “unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in and Indian tribe and is the biological child of a member of an Indian tribe.”  See 25 U.S.C. §1903(4) (2006). Furthermore, an Indian tribe is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services  provided to Indians by the Secretary (of the Interior) because of their status as Indians, including any Alaskan Native village.”  See 25 U.S.C. §1903(8) (2006).

So it seems that at a minimum a social worker for a county department of social services should ask in the course of an assessment or investigation whether a child is (a) a member of federally recognized Indian tribe or (2) whether the child is eligible for membership in an Indian tribe and whether a parent is a member of an Indian tribe.

With that question answered, three points of observation should be made at this juncture. First, it very often will be the case that when a social worker asks a parent the afore-mentioned question , all manner of lore is coughed up about genealogical connections to tribes of every description. Very often the dialogue will resemble something like the following:

Q:           “Is Johnny (Susanne, Cheyenne, April, Bill, etc.) a member of federally recognized Indian  tribe or is the child is eligible for membership in an Indian tribe? Are you, the parent of    Johnny (Susanne, Cheyenne, April, Bill, etc. ) a member of an Indian tribe?”

A.            “Well, my uncle was part Cheyenne Indian and my cousin was half Blackfoot.”

Obviously, such answers not only do not answer the question but they also do not convey the necessary information to lead to a mad dash to contact an identified tribe. The social worker should make sure that the answer is properly answered and only the proper answer is recorded in dictation and reported to the court.

Second, if the respondent does answer the afore-mentioned question correctly and affirmatively, verification is warranted by contacting the identified federally recognized tribe as well as independent corroboration. As a recent North Carolina Court of Appeals case, In re L.W.S. has shown, parents are not always good historians and occasionally get the facts wrong. See In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (parent erroneously asserts that birth record identified child as Cherokee when birth records admitted into evidence fail to substantiate claim).

Third, even if a child is likely to be an Indian Child, while ICWA will likely govern the proceeding, the identified tribe has the final say on whether the child is an actual Indian Child and whether it will exercise its right to intervene. See 25 C.F.R. § 23.108(a-b) (2017). Thus, if a positive identification occurs of a suspected Indian Child, the county department of social services has a burden to contact the Indian parents, Indian custodians and the child’s tribe by certified mail. See 25 C.F.R. § 23.11(a) (2011). Only when the tribe gives an answer affirmatively , negatively or (by proxy negatively) by not answering back is the inquiry complete.

As was noted in the case of In re L.W.S., the burden of identifying whether a child is an Indian Child is part of the function of the North Carolina District Court when it factually determines whether subject matter jurisdiction exists. In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (footnote 4). The trial court will not be able to discharge its judicial responsibility if it cannot obtain the necessary facts to ascertain and find that subject matter jurisdiction exists and if so, whether that is under N.C. Gen. Chapter 7B or ICWA. While it is true that the burden of proof lies with an individual who seeks to invoke ICWA (see In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007), it nevertheless is the burden of the petitioner to provide the trial court competent factual evidence to establish subject matter jurisdiction.

Thus in summary, to answer the question as to what constitutes the burden of a county department of social services of identifying an Indian Child,  the county department of social services must ask the proper questions under ICWA, must follow up with the identified tribe, and report these facts to the court. Beyond this, the burden lies with other parties or with the trial court.