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?