With an almost medieval fixation on required legal formula
and “magic incantations”, the North Carolina legislature and the Court of
Appeals have made the practice of crafting orders in juvenile cases an increasingly
difficult task. With so many mandated requirements, including standards of
evidence that occasionally change midstream, the judge or lawyer tasked with drafting
an order is faced with so many snares and pitfalls that they might think they
had suddenly been transported to latest instalment of the Indiana Jones
franchise. Nowhere is order drafting more difficult than when it comes to
drafting permanency planning hearing and permanency planning review orders.
Several years have now passed since review and permanency
planning hearings were lumped under the then newly created statute, North Carolina
General Statute 7B-906.1. The most daunting components of the now combined
statute relate to the cessation of reunification efforts , the imposition of an
alternative plan of care, and the requirements related to changing custody to a
person other than a parent. These difficult areas will be outlined in turn in
what follows.
Cessation of Reunification Efforts
An inherent but rebuttable assumption in juvenile cases,
even where non-secure custody has been taken over a child, is that parents will
have the opportunity to either work toward the goal of either family
preservation (in those instances where custody remains with a parent or
parents) or reunification (where custody is temporarily removed). This
presumption stems from the constitutional protection afforded to parents to be
able to raise their children as they see fit as long as they are fit (or
capable of being fit) or as long as they act (or begin to act) consistently with
their constitutionally protected status as parents. See N.C. Gen. Stat.
7B-901(c); 7B-906.1(e); Peterson v.
Rogers, 337 N.C. 397, 445 S.E.2d 901 (1991); In re K.L., __N.C. App.__,__S.E.2d__(July 5, 2017).
Of course, where a parent has engaged in really bad behavior
that has led to the filing of a juvenile petition—such as abandoning the child,
committing murder or voluntary manslaughter of another child of the parent or
aided or abetted the same---this presumption can be disposed of right at the
first Dispositional Hearing. See N.C. Gen. Stat. 7B-906.1(f). Likewise, where
the child has remained in the temporary custody of the county department of
social services 12 of the most recent 22 months next to the filing of the
juvenile petition, this presumption can also be disposed of by the trial court
at a subsequent review or permanency planning hearing. Id. It is also possible for the court to make such a determination
prior to the passing of the 12 month period if the court first determines that
it is not possible for the juvenile to be placed with a parent within the next
six months. See N.C. Gen. Stat. 7B-906.1(e). However, if the court does make
any of these findings and it additionally finds that a plan of reunification
should no longer be the plan of care for the juvenile, the trial court must
make its findings by clear, cogent and convincing evidence, even though the
other findings might be permissibly found by the preponderance standard. See Adams v. Tessener, 354 N.C. 57, 550
S.E.2d 499 (2001); In re K.L., __N.C.
App.__,__S.E.2d__(July 5, 2017). The failure of trial courts to make such
findings and to find that reunification should not be the plan of care by the
clear, cogent and convincing evidence standard has been the source of heartache
for a number of judges who have seen their cases reversed or vacated and
remanded.
The Imposition of an Alternative Plan of Care
If it is clear to the trial court at a review hearing that
reunification is contrary to the best interest of a juvenile, a permanency
planning hearing must be scheduled within 30 days of the hearing where reunification
is removed as a plan. See N.C. Gen. Stat. 7B-901(d). At the permanency planning
hearing, the trial court must then make careful examination of the plan alternatives
that make written findings regarding each of them, including whether legal
guardianship or custody with a relative or some other suitable person should be
established; whether adoption should be pursued; and whether the juvenile
should remain in their current placement or be placed in another alternative
permanent living arrangement (APPLA). See N.C. Gen. Stat. 7B-906.1(e). In
addition, at subsequent permanency planning hearings, the court, in addition to
re-evaluating the appropriateness of all the possible plans, must also make a
written determination whether the county department of social services made
reasonable efforts to effectuate the permanent plan or plans since the initial
permanency planning hearing. Id.
Changing Custody to a Person Other than a Parent.
The most significant
task confronting the trial court in a juvenile case at a permanency planning
hearing is implementing a plan which requires a change in custody or conferral of
guardianship upon a third party. To do so, the court must engage in a one to two-step
process. First, in those cases where the trial court has previously entered an
order of custody, the court must subsequently determine that “. . .there has
been a substantial change in circumstances affecting the welfare of the child;
and (2) a change in custody is in the best interest of the child.” See N.C. Gen. Stat. 7B-1000; In re A.C., __ N.C. App. __, 786
S.E.2d
728 (2016). Second, regardless of whether the court has previously entered an
order of custody, in order to confer custody upon a third party, the court must
make a determination that each parent is either unfit or is acting
inconsistently with their constitutionally protected status as a parent. See In re K.L., __N.C.
App.__,__S.E.2d__(July 5, 2017). Again, failure to do so will result in a trial
court’s orders being reversed or vacated and remanded.
Thus, one can readily see that drafting court orders,
particular those related to permanency planning or permanency planning review,
is a difficult and potentially dangerous practice in these current times. The
only relief and guidance is to be found in persistent attention to the statutory
requirements, keeping up to date on the latest statutory interpretations by the
Court of Appeals and the Supreme Court, and in careful drafting. With increased
case-loads in the area of child welfare in the past few years, putting in this
extra effort is a luxury few can afford. Yet it is clear that it is necessary
and a requirement of competent legal representation. To quote Benjamin Franklin, an ounce of
prevention is truly worth a pound of cure.
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