Why Guardianship is a Better Plan of Care than Custody With a Third Party in Child Welfare Cases

Parent's attorneys often ask why the Department of Social Services wants to change a plan to Guardianship rather than to a plan of Custody with a Relative or Court Approved Caretaker. Very often the answer given is a bit vague and very often doesn't satisfy parent attorneys or their clients who, as the parents or former guardians, caretakers or custodians for a child in custody, are looking at the best options given an impending plan change away from one of Reunification.

The following constitutes the best answer that I can give to the many inquiring minds that want to know. I hope it is both informative as well as useful to your daily work in Juvenile Court.

When a parent has acted in a way that is contrary to the welfare of a juvenile or has otherwise acted inconsistently with their Constitutionally protected status as a parent, the court may conduct a permanency planning hearing and, after finding that reunification should not be a plan, consider permanent plans that involve guardianship or custody with a court approved third party (or termination of parental rights and adoption). North Carolina General Statute 7B-906.1. Concurrent planning is required at the permanency planning stage of a juvenile proceeding and it is perfectly possible to have both guardianship and custody as concurrent plans. Id.  However, even if both plans are chosen, there must be a primary and a secondary plan. Id. When evaluating which plan should be a primary plan, one must note that each of these plans have their particularized merits and advantages as well as disadvantages which commend consideration before a primary and secondary permanent plan is established. These advantages largely pertain to each plan’s relative durability and the level of permanence that is afforded to the child. However, other considerations also exist which should inform the choice made.

Of the two plans of care, guardianship is the most permanent when compared to a plan of custody with a third party. This greater permanence is made possible by North Carolina General Statute §7B-600’s mandate that guardianship may only be terminated if (i) the court finds that the relationship between the guardian and the juvenile is no longer in the juvenile’s best interest, (ii) the guardian is unfit, (iii) the guardian has neglected the guardian’s duties, or (iv) the guardian is unable or unwilling to continue to assume the guardian’s duties. N.C. Gen. Stat. 7B-600. Noticeably absent  from the list of reasons for terminating a guardianship is that a material change in circumstances has transpired which is the usual basis for the modification of a child custody order. Id. Thus, in the case where a grandparent is made a guardian over a grandchild under circumstances where the grandchild’s parent has been determined to be unfit, the termination of the guardianship would not be warranted merely because the grandchild’s parent has sought rehabilitation and has benefited from the same. It is for this very reason that many parent attorneys actively seek to have a plan of custody with a third party imposed as a primary plan, anticipating that their client may over time rehabilitate themselves and regain custody by showing to the juvenile court that there has been such a material change in circumstances such that their client is no longer unfit. 

Aside from the increased durability of guardianship, there are also other justifications for a primary plan of guardianship over a primary plan of custody with a third party. First, the policy objectives of the Juvenile Code require that the trial court provide the juvenile with a permanent home in the least possible time, not merely a temporary weigh-station along the path of childhood which can be disrupted as the fortunes of a parent rise from the ashes, sometimes years after the initial conferral of custody to a third party. Guardianship allows the child to be not only to be secure socially and materially (i.e. maintaining the home, the same school district and the like) but also in terms of emotional security. Guardianship, being the more permanent option for long-term placement, largely eliminates the possibility for the child to endure the psychological aspects of placement disruption, especially if the child is emotionally attached to their former caregiver. 

Finally, a plan of guardianship provides a relative safe harbor for the guardian caretakers of a child from continual litigation which would not likely be the case if the standard for placement modification were merely a material change in circumstances. Such a safe harbor provides relief from the need to expend financial resources defending the care giving arrangement and also gives the guardians stronger leverage against verbal attacks (with threats to remove legally remove the child or children) that so often come from parents or former guardians, caretakers or custodians who have become legally estranged.

The Adoption and Safe Families Act of 1997: 20 Years of Declining Time in Care for Foster Children

A recent article in the Wall Street Journal (Naomi Riley,“The White House Can Help Foster Kids” ( op-ed December 10, 2018), makes several astonishing claims alleging that children are languishing in foster care because states are violating federal law. As things would have it, such claims are the farthest from the truth. The substance of Ms. Riley’s allegations is that, first, states are not following the Adoption and Safe Families Act of 1997(ASFA), which requires among other things, that children be moved on to a plan of Termination of Parental Rights and Adoption  when their time in foster care has exceeded 15 of the prior 22 months. Second, Ms. Riley claims that states are not following the Metzenbaum Multi-Ethnic Placement Act of 1994 (MEPA). This law, as you will recall, prohibits the delay or denial of any adoption or placement in foster care on account of the race, color, or national origin of the child or of the foster or adoptive parents and requires states to diligently recruit ethnically and racially diverse potential foster and adoptive families.

As one would imagine, the time children spend in foster care is tracked by both the states as well as the federal government. In the August 10, 2018 Adoption and Foster Care Analysis and Reporting System (AFCARS) Report published by the U.S. Department of Health and Human Services, it turns out that the mean time for foster children in care in 2017 was 20.1 months with the median being at 12.9 months. If one were to compare these figures with data from 1998, one year after the Adoption and Safe Families Act was ratified and enacted in law, it turns out that the time children spent in foster care in 1998 was a mean of 32.6 months and a median time span of 20.5 months. Thus in the past twenty years, the mean and median time for children in foster care has been slashed by approximately 38%. Since the federal government does not run juvenile courts, the only possible party to blame for such progress can be the individual states. Thus, it seems rather illogical to claim that ASFA time frames are not being adhered to because if that was the case, you could hardly expect the time in care to go down at all, let alone by a measure of over one third.

This same AFSCAR data casts significant doubt about Ms. Riley’s other claim that states are violating MEPA as well. According to the August 10, 2018 report, the number of black children in foster care declined from a high of 43% in 1998 to 17% in 2017 as recorded in the August 10, 2018 AFCARS Report. At the same time, the number of Caucasian children in foster care increased from 35% in 1998 to 44% in 2007, not including Latino children.

While ASFA mandates a plan of care of Termination of Parental Rights and Adoption for children who have been in foster care for 15 of the past 22 months, some states, like North Carolina, have a lower threshold for a mandated plan change. In North Carolina, this threshold is 12 months. However, this mandate is only effective if a trial court can find that a child cannot safely be returned home because a parent, guardian, caretaker or custodian cannot provide a safe and appropriate home and will not likely be able to do so in the near future. As any child welfare attorney knows, this latter criterion is a difficult hurdle to overcome. Many caregivers from whom a child is removed only start working toward reunification at the 11th hour. If these positive efforts continue, they often defeat a termination proceeding. This only causes a child further delays in achieving permanence, the last thing you would want if your goal is to reduce overall the number of months a child spends in foster care.

Based on the AFCARS data, it seems that generally the states are doing a good job adhering to federal law. Naomi Riley, who would have the White House intervene to enforce federal law, may in fact trigger a panic among the states which in turn will create pressure to bring about termination actions sooner than they are warranted by the facts of a given case. It seems the best course of action is to stay the course, be judicious in the decision to change the plan to TPR/Adoption, and only initiate proceedings when it is reasonably clear that the TPR case can be won. This is the only way states can preserve their over-all record of maintaining a 20 year decline in the time children spend in foster care.

Special Problems Regarding Obtaining or Continuing Non-Secure Custody: Homeless, Incarcerated or Intransigent Parents

                

            North Carolina General Statute 7B-503 requires that the trial court make inquiry into and make particular findings in several areas before it orders that a child be taken into non-secure custody or continues non-secure custody. These several factors include that (1) a reasonable basis exists to find the allegations in the juvenile petition are true; (2) that at least one of the factors enumerated G.S. 7B-503 (a) (1-5) exists which would substantiate imminent risk to the child or parental consent for non-secure; and that no other reasonable alternative exists to non-secure custody. N.C. Gen. Stat. 7B-503. With regard to the factors set forth in G.S. 7B-503(a)(1-5), a court must find that  (1) the juvenile has been abandoned; (2) the juvenile has suffered physical injury or abuse; (3) the juvenile is exposed to a substantial risk of physical injury or sexual abuse” because “the parent, guardian, custodian or caretaker has created conditions likely to cause injury or abuse or has failed to provide, or is unable to provide, adequate supervision or protection”; (4) the juvenile requires medical treatment to cure, alleviate, or prevent suffering serious physical harm which may result in death, disfigurement, or substantial impairment of bodily functions or that the parent, guardian, caretaker or custodian is either unable or unwilling to consent to treatment; and/or (5) the parent, guardian, caretaker or custodian consents to non-secure custody. N.C. Gen. Stat. 7B-503 (a) (1-5) (emphasis added).

Very frequently the parents, guardians, caretakers or custodians for the child in child welfare cases are either incarcerated, homeless, or semi-homeless, living upon the largess of friends and associates for limited periods of time before they move on to other places of temporary residence. This gives rise to a very common question for judges in juvenile cases as to how a trial court is to evaluate a child's exposure to serious physical injury or sexual abuse. Depending on the parents' status, the analysis runs from the fairly easy to the more nuanced and complex, as the following discussion reveals.

First, it should be stated that there is very little credible argument out there that an incarcerated parent is anything but unable to provide adequate supervision or protection for their child due to their disability of being physically separated from the outside world because they are in jail or prison.  Accordingly, the inquiry a judge really faces with regard to whether a child should be placed or continued in non-secure custody where the parent is incarcerated really turns on whether a reasonable alternative to non-secure custody exists (i.e. placement with a relative or in a kinship placement while the parent is incarcerated). 

With the homeless or intransigent parent, the inquiry is not so simple. While typically children prosper more readily in their own home, the lack of a home or the lack of a permanent home does not, in and of itself, mean that a child is exposed to a significant risk of harm. The trial court should evaluate particularly the places where the child would be forced to reside to make an appropriate determination of risk of harm. Thus, for example, a child living with a parent in a parked van (even if "down by the river") might safely continue with the parent if it can be demonstrated that the child in such a situation is adequately protected from risk. However, when that locked and parked van is located in a notoriously violent part of town, or where the van has no source of heat and it is in the winter months, or where the parent is using drugs in the van, then a judge should be able to readily determine that such temporary automotive accommodation is inconsistent with the child’s need for and grant non-secure or continued non-secure custody. 

This same analysis is applicable to other forms of temporary accommodation that a parent might locate to house a child. Such temporary accommodations most frequently involve the parent moving repeatedly to a series of homes in a short period of time (“couch surfing”) due to the parent's lack of more substantive accommodations. Again, a parent and child sleeping in the living room of a safe home owned by an appropriate homeowner should ordinarily pose little problem for child safety. However, when people are coming and going in a home due to the drug trafficking by the owner or leaseholder; or where there is ongoing domestic violence in the home, the risk of physical or sexual harm coming to the child might very well be substantial.

The take away of this discussion is simply this: like every decision a trial judge must make, the decision of one presiding over a child welfare non-secure case must be done deliberately and with particular deference to the unique facts of every case to avoid unnecessary separation of families. Only by considering the particular circumstances affecting the child who is the subject of a non-secure hearing can a judge appropriately undertake this task and assure that the twin goals of the Juvenile Code are advanced: the preservation of family integrity within the context of keeping children safe.

Adjudicating Neglect Where the Child Lacks Adequate Housing: A Delicate Balance

                Many juvenile cases involve the issue of lack of appropriate housing for children. Whether a parent, guardian, caretaker or custodian is homeless, is intransigent, or the home which they maintain does not meet minimum community standards, where a child lacks access to appropriate and safe housing prior to the filing of a juvenile petition, an allegation of neglect is often appropriate.

                However, not every case where a child lacks access to appropriate housing merits a juvenile petition. It is always important and necessary when evaluating whether a child’s housing needs are being met to ascertain whether there is a nexus between a child’s living situation and decisions made by a parent, guardian, caretaker or custodian regarding that living situation. To this end where the child is forced to live in substandard conditions or in conditions due to poor decisions made by those providing care for child and where the child is expose to perpetual impermanence, homelessness or exposure to household conditions that are below minimum community standards such a nexus will be readily found and a juvenile petition alleging neglect is necessary to protect the child from further bad decision-making.

The situation is altogether different where a child’s poor housing situation is the result of involuntarily circumstances, poverty, or misfortune. North Carolina law is clear that mere poverty (including homelessness) standing alone, is not an appropriate basis for alleging neglect based on improper care or the existence of an injurious environment. (See N.C. Gen. Stat. 7B-1111(a)(2)).  Rather, the Juvenile Code requires, outside of evidence that the child lacks appropriate housing, that there be something more, to wit, that there be evidence that decisions made by those who take care of a child are directly responsible for the child’s lack of appropriate housing resources. (See e.g. In re Black, 76 N.C. App. 106, 332 S.E.2d 85 (1985)). This evidentiary inquiry can take two distinct directions. First, given that the child is living in inappropriate conditions, it must be asked whether a parent, guardian, caretaker or custodian has sought out different accommodations for the child. In such a case, such as where those providing care for a child voluntarily place a child in a relative or kinship placement that is safe and appropriate to meet the child’s needs prior to a juvenile petition being filed, there will not be a basis for a court to find that the child is neglected, at least with regard to the housing issue. S=3 However, if those who provide care for a child refuse to look for an alternative placement for the child while they are homeless, or where the county department of social services is required to locate a relative or kinship placement and where the child is placed in such a home at the behest of the agency, then it is still possible for a Juvenile Court to find the child neglected.

Thus in a case where a mother placed a juvenile in a voluntary kinship arrangement with maternal grandparents prior to a county department of social services filing a juvenile petition at the urging of the DSS and where the conditions of the Mother did not improve but posed a continued risk of harm to the child if the child were to return to her care, the Appellate Court affirmed an adjudication of neglect where the trial court considered the conditions surrounding the child as they exist at the time of the adjudication. (See In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010)). However, in another case where a homeless mother placed a child with a third party without input from the DSS, the court reversed a trial court’s adjudication of neglect, noting also that there was no evidence that suggested on-going risk to the child. (See In re B.P., __N.C. App.__, __S.E.2d__(January 16, 2018)).

A Parent's Duty to Provide Medical Care, Faith Based Exceptions and Criminal Prosecution for the Negligent Death of a Child

Generally, state laws, either explicitly or implicitly, impose a requirement that parents provide appropriate medical care for their children. However, many states also provide religious based exception to the provision of medical care. For example, in North Carolina, an exception is provided to compulsory laws requiring childhood immunization if the parent has a bona fide religious belief which would preclude immunization. See N.C. Gen Stat 130A-157. In other states, the religious exemptions can be more extensive and in many cases allow for faith based healing to be a lawful substitute for traditional medicine if such healing is provided for by a parent’s religion. See State v. Neumann, 832 N.W.2d 560 (Wis. 2013); Hermanson v. State, 604 So.2d 775 (Fla. 1992); State v. McKown, 475 N.W.2d 63 (Minn. 1991); State v. Crank, 468 S.W.3d 15, 21 (Tenn. 2015). In each of the afore-mentioned cases (and a number of others), religious exemptions to traditional medicine led to the death of a child when the parents solely relied upon prayer as a means to heal a sick child. In such cases, the parents were criminally charged following the death of their child. On appeal, some of the cases (Neumann, Crank) resulted in the convictions being affirmed. In others, the convictions were said aside (Hermanson, McKown).

In light of this mixed result where prosecution of parents occurred who withheld modern medical treatment, two questions arise:

First, does a child in a parent or parents’ care have an absolute right to modern medical  treatment?

Second, if that right is not absolute, when does it arise?

Whether a child has an absolute right to medical treatment turns generally on whether a parent, in withholding modern medical treatment is acting in a reasonable fashion. Unfortunately, exactly what constitutes an unreasonable refusal to administer treatment is far from settled. For example, in Wisconsin, a child’s parents were convicted of second-degree reckless homicide when their daughter, who suffered from diabetic-ketoacidosis, died from untreated juvenile onset diabetes mellitus. Rather than allow the child to be treated with medication, the parents opted for prayer, though they were of no particular faith but loosely identified as Pentecostal. The parents’ conviction was subsequently affirmed by the Wisconsin Supreme Court despite the existence of a state statute which provided an allowance for treatment by spiritual means through prayer in lieu of medical or surgical treatment. See Wis. Stat. §948.03(6). The court, after considering the statute which provided for faith based healing, determined that (1) a parent who fails to provide medical care to his or her child, (2) creates a unreasonable and substantial risk of death or great bodily harm, (3) is aware of that risk, and (4) causes the death of the child through continued reliance on faith-based treatment, runs afoul of the Wisconsin’s criminal laws regarding reckless homicide. See State v. Neumann, 832 N.W.2d 560 (Wis. 2013).

This same point of law has also been taken up in several other states which have similar faith healing statutes. Unlike the court in Neumann, courts in other states such as Florida and Minnesota have reached different conclusions and have found that either the faith healing statute failed to provide a line of demarcation at which point a parent could know their reliance of prayer amounted to criminal conduct or that the statute was a complete defense to prosecution. See Hermanson v. State, 604 So.2d 775 (Fla. 1992); State v. McKown, 475 N.W.2d 63 (Minn. 1991).

Thus when it comes to the rights of children to receive appropriate medical treatment, there is no absolute right for children to receive modern medical treatment. To the extent that a child does have this right at the present time seems to be a function of (1) the severity of the illness or malady faced by the child; and (2) whether a religious exemption to treatment exists where a court has firmly defined the limits to which prayer can be used as a substitute for medicine. Generally speaking, the right to treatment is only guaranteed in states which lack faith healing statutes. Even then, a child’s right to treatment exists only to the extent that the sickness or malady is serious and life threatening, where failure to provide modern medical treatment would most likely result in the death of a child if the parents continued to withhold the same.

The present state of uncertainty in the law regarding faith healing presents a serious consequence for children who certainly cannot choose their parents, their parents’ religious beliefs, or generally the state that they live in. In turn, this uncertainty also presents a serious challenge for parents of certain religious traditions who must decide the limits to which they will cleave to their faith in opposition to the claims of scientific medicine. While no solid solutions exist in all states, the law in this area is evolving. Perhaps in the near future compromise legislation can be made on the federal level or as a result of uniform action among the states which will not only assure the well-being of dependent children but which also respects the rights of parents to not only believe their faith but to put it into practice without fear of prosecution or the specter of a child being delivered to the grave.

We're From the Government and We're Here to Help: The AOC and Revisions to the Juvenile Petition Form AOC-J-130

Child Welfare practice in North Carolina is one dependent upon forms, at least in the early stages of any juvenile court proceeding. While not a formal requirement, the North Carolina Administrative Office of the Courts has encouraged the use of its “Juvenile Petition” otherwise known as form AOC-J -130. This form has seen much revision since it was first introduced decades ago and is even now being revised, this time to add an attorney signature line---something that has never appeared on the form in it’s entire multi-decade history.

Legal forms persevere in this day in age because they serve an important purpose: they are a proxy checklist for the pleading requirements that are imposed by North Carolina Chapter 7B as well as the North Carolina Rules of Civil Procedure. However, when it comes to the initial juvenile petition and form AOC J-130, some parts of the form are more important than others.

For instance, the address blocks for the child and parents and the age blocks for child at the top of the form are necessary to properly establish subject matter jurisdiction and appropriate venue. If the child is not actually a child (i.e. above the age of majority) or does not live in or cannot be found in the same county as the petitioning county department of social services, then issues of standing and subject matter jurisdiction will impede the petition and the petition must ultimately be dismissed. See In re A.P., __N.C. App.__ (April 18, 2017). A court’s subject matter jurisdiction can also depend on proper pleading in those blocks containing the allegations of either abuse, neglect or dependency and the verification blocks. (See In re T.R.P., 173 N.C. App. 541 (2005); Matter of Triscari Children, 109 N.C. App. 285 (1993)).

But what about the other blocks on the form?

The North Carolina Court of Appeals has definitely stated that it is necessary to properly check whether the director of a county department of social services is signing the juvenile petition or a designated representative and a false step here has led to the dismissal of a juvenile petition. See In re A.J.H.-R, 184 N.C. App. 177 (2005) (social work supervisor rather director signs petition when checking “director on juvenile petition form).

While this area on the “director”/designated representative” section of the form is an area of notable importance, there are a number of other areas which don’t seem to raise as much concern for the appellate courts. For example, while it prominently commandeers the lower fourth of the juvenile petition’s second page, the “witness” section of the form often goes unfilled and thus far no one has successfully raised issues that a lack of named witnesses deprived a party of notice or deprived the petitioning party of standing.

Neither has there been much concern about the check boxes on the front that summarily allow a party to allege the condition of a child as an abused, neglected or dependent juvenile. However, it is easy to imagine that failure to check these boxes accompanied by a failure to properly plead abuse, neglect or dependency in areas provided lower on the form would lead to trouble.

So the question arises as to the importance of the attorney signature line that has most recently been placed on the form. One line of reasoning states that the requirements of North Carolina Rule of Civil Procedure 11 require the attorney to sign any pleading, motion or other paper submitted to a court. See N.C. Gen Stat. 1A-1, Rule 11.  However, this position ignores the fact that in the area of child welfare, North Carolina General Statutes Chapter 7B specifically authorizes a director or the director’s designated representative to file a juvenile petition without the assistance of an attorney. See N.C. Gen. Stat. 7B-401.1. What’s more, many juvenile petitions in many counties are not reviewed by attorneys as they are filed after-hours and contain information that cannot be ethically certified by the attorney through a signature.

So in effect, the signature line added by the Administrative Office of the Courts is now creating, on the one hand, a plausible scenario for county DSS attorney’s to run afoul of ethical requirements if they sign pleadings that they have not absolutely vetted with social work staff and by reviewing documentation. On the other hand, the AOC has invited a new rash of appeals where a petition is concerned where the DSS attorney fails to sign the pleading, perhaps due to the very fact that the pleading could not be ethically certified under Rule 11.

And so it goes.

As with so many others whose noble acts seemed good at the time, the North Carolina Administrative Office of the Courts is about to learn about the law of unintended consequences, consequences that will probably be detrimental to the integrity of child welfare practice in North Carolina and will in all likelihood delay permanence for dependent children who must wait additional months for unnecessary appeals to pass before they can be legally clear for adoption.

A Parent's Right to Be Present in Juvenile Court? Sometimes But Not Always

A recent case handed down by the North Carolina Court of Appeals addresses a question that frequently arises in juvenile court:

To what extent does a parent have a right to be present in their child’s juvenile welfare proceeding?

Addressing this issue in a February 20, 2018 decision, the court, in the case of In Re S.G.V.S, __N.C. App.__,__S.E.2d (February 20, 2018), held that a parent detained by criminal court and prohibited  from attending a termination of parental rights hearing in which she was a respondent had the right “. . . to be present at the termination and best interests hearing, to assist her counsel with the direct and cross-examination of witnesses, to testify on her own behalf, and to present any other evidence in the adjudication and disposition stages of the hearing on DHHS’ motion to terminate her parental rights.”  In the Matter of S.G.V.S. was a Haywood County termination of parental rights case where the mother’s parental rights were terminated. The respondent mother, while present on the first day of the hearing, was not present when the case was continued for further hearing due to a court date in Buncombe County on criminal trespassing charges. The TPR hearing went on in respondent mother’s absence, despite two motions to continue filed by the respondent mother’s attorney at both the adjudicatory and dispositional stages of the termination proceeding. 

Following the hearing where the mother’s parental rights were terminated, the respondent mother’s attorney filed a Rule 59 motion to re-open the evidence at the TPR hearing. Included in the respondent’s post-judgment motion request for relief was an accompanying statement filed by the respondent mother’s attorney alleging that the mother’s was prevented from attending her child’s hearing by a criminal court judge who required her to remain in court until the respondent mother’s criminal case was reached.

Citing the fact that retaining one’s custody over one’s child is a fundamental liberty interest that requires due process protections, the appeals court vacated remanded the case was particularly concerned about the juvenile court’s denial of the mother’s request to continue the termination hearing or re-open the evidence, which the trial court justified in part by a finding that the respondent mother “chose” to attend criminal court rather than attend the termination hearing.

In its decision reversing and remanding the trial court’s decision to terminate parental rights, the Court of Appeals held that “. . .[t]he trial court’s refusal to continue the hearing to a different day and denial of the Rule 59 motion to allow Respondent to attend and participate results from a misapprehension of the law and is an unreasonable and substantial miscarriage of justice.”

In re S.G.V.S, follows a similar line of reasoning articulated earlier in 2017 in the case of In re C.M.P., __N.C. App__, 803 S.E.2d 853 (2017), but reaches a different result . In that case, the Court of Appeals likewise addressed the constitutional implications of a trial court’s denial of a motion to continue at a termination of parental rights hearing. Like in S.G.V.S., a motion to continue was filed at the beginning of the proceeding due to the unanticipated delay of the respondent. The motion was denied and the trial proceeded in the respondent mother’s absence. Id. However, unlike in S.G.V.S., the respondent in C.M.P. did not account for her whereabouts and did not request to re-open the evidence. Throughout the proceeding, the respondent’s attorney was able to cross examine witnesses and object to the admission of evidence but did not preserve the constitutional issues of due process and ineffective assistance of counsel at trial that were later claimed in the appeal.

The Court of Appeals in S.G.V.S. found that the trial court did not abuse its discretion in denying the motion to continue even though it meant that the respondent would not be in court to assist the defense of their case. Among the reasons cited for this holding were that the respondent failed to preserve the issue of whether the denial of the motion violated her constitutional right to effective assistance of counsel, her attorney assisted in her defense in a recorded proceeding and the fact that respondent failed to contact the court or her counsel to inform them of any issue preventing her attendance at the hearing and provided no reason for her absence.  Quoting In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 240, rev other grounds, 356 N.C. 288, 570 S.E. 2d 212 (2002),  the court addressed this last point by stating that "[c]ourts cannot permit parties to disregard the prompt administration of judicial matters. To hold otherwise would let parties determine for themselves when they wish to resolve judicial matters." 

Other reported cases have emphasized the constitutional issue of confrontation rather than effective assistance of counsel or due process. For instance, a parent in the case of In re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983) was removed from the courtroom while the parent's eleven-year-old son testified in a proceeding to terminate respondent's parental rights. In that case, the North Carolina Court of Appeals found no error in the court’s decision to remove the parent since the parent's right to confront the witnesses against her was protected where each party's counsel questioned the child in the courtroom and the same was recorded. Id. Similar results were reached.

In the case of In re D.R., 172 N.C. App. 300, 616 S.E.2d 300 (2005), the court went even further in its responds to a Sixth Amendment claim that a respondent had the right to confront witnesses who made statements that were admitted as out of court testimony in a termination of parental rights case. In overruling that argument, the Court simply noted that the confrontation clause was applicable to criminal proceedings not civil proceedings. Since termination cases were civil, the argument simply did not carry weight.

In summary, it appears that whether a parent has a right to be in the court room depends on several factors. If the parent has representation, if their representation effectively engages in cross examination and objection to the admission of evidence, if the proceeding is recorded, and if the parent has a good excuse for being unavailable and has attempted to continue the matter, then there is a strong likelihood that justice will require their presence. Failing any of these critical ingredients, then it appears that the likelihood that a parent will successfully prevail on a claim of ineffective assistance or lack of due process will be considerably diminished.

School Tragedy; Hardened Schools; and the Fourth Amendment: Can We Keep Our Children Safe?

In an age of the Columbine, Virginia Tech, Sandy Hook and now Douglas High School tragedies, students fundamentally have a right to demand safe schools and school officials have an obligation to keep their students safe. 

But what legal tools are out there to make schools safe? And more importantly, what limit does the constitutional place on the use of such efforts to guarantee security?

As a general proposition, school officials have a wide ability to take actions necessary to secure a school campus. These actions can include the use of metal detectors (See New Jersey v. T.L.O., 469 U.S. 325 (1985)); sniffer dogs in common areas (Doe v. Renfroe, 475 F. Supp. 102 (N.D. Ind. 1979)); and student drug screens where reasonable and compelling justifications exist (Dominic J. v. Wyoming Valley West High School, 362 F. Supp. 2d 560 (M.D. Pa. 2005)). Finally, where individualized suspicion or special needs exists, students and their property may be subjected to a search by school personnel.(J.P. ex rel. A.P. v. Millard Public Schools, 830 N.W.2d 453 (2013)). Such searches can also extend to the abandoned or “lost” property of students (i.e. book bags, gym bags, and the like) (State v. Polk, 78 N.E.3d 834 (2017)).

However, with all of these capabilities possessed by school officials, the Fourth Amendment still applies to searches and seizures on school campuses to protect students from unreasonable and unauthorized intrusion into student privacy. For instance, while suspicionless drug screens may be mandated for students for participation in extracurricular activities, the school must first establish that there is a special need and a compelling government interest for such drug screens or the drug screens will be held unconstitutional. See Board of Education v. Earls,536 U.S. 822 (2002) . Likewise, while special needs searches and seizures may occur on school grounds, this right significantly diminishes when the search occurs off campus or after normal school hours. (See Webb v. McCullough, 828 F.2d 1151 (6^th Cir. 1987)). Finally, efforts to arm teachers, though such efforts would harden schools against violent intruders who view schools as “soft targets” suffer from the fact that there have been long standing prohibitions against guns on school grounds, prohibitions that have even been noticed by the U.S. Supreme Court. District of Columbia v. Heller, 554 U.S. 570 (2008).

With the tension that exists between creating a secure learning environment and preserving student civil liberties, school officials have a difficult task in balancing two mutually antagonistic objectives. More to the point, even when school officials successfully negotiate this balancing act, the question continues to remain one that has been aptly put by one commentator, “. . .[W]hile we harden the schoolhouse gate, practice new drills, and coordinate response times and active shooter tactics. . . are these efforts sufficient? (Todd A. Demitchell, Locked Down and Armed: Security Responses to Violence in Our Schools, 13 Conn. Pub. Int. L.J. 275 (2014).

The horrible news headlines of recent days quite clearly answer this question in the negative. 

If there is to be a solution, for the reasons just provided, the government will not likely be able to provide it, either through policy or legal practice. Rather, if any solution is to be had, it must in large part come from the citizenry at large, and most particularly those parents of school-age children whose mantra must increasingly be that “if one knows something, one must say something”. While no one can know everything at any given time, the aggregate of students and parents at a school can know quite a lot. Such crowd sourcing of data can be the source of information about a potential shooter, about a plot or scheme designed to bring harm, or even whether drugs are being sold in the school. Knowledge can be power but only if that knowledge is passed along to people who can act.

If those in society wish to keep children safe, the time has come for active engagement in our schools, providing school officials the information they need to minimize the problems that so often plague schools in the present day. Talk to your children; talk to other adults; if you know something that might be important, if you know of harm that can come to someone else, pass it along. Such active engagement might be the one thing that can prevent another tragedy.

A Subtle Point to Consider in a Case Where a Juvenile has been Alleged to be Neglected and/or Dependent

Can a child be neglected or dependent when the child, at the time of the adjudication, hasn’t being immediately impacted by neglectful parental behavior or is in a safe, alternative care-giving arrangement?

Surprisingly, the answer is both “yes” and “no”.

On the negative side of the equation, where a parent of a child has engaged in behavior which might be questionable but there is no impact on the child and no likelihood of an impact in the future as of the date of the adjudication hearing, an adjudication of neglect is inappropriate. The reason is that that to sustain an adjudication of neglect, the alleged neglectful conditions must cause the juvenile “some physical, mental, or emotional impairment” or create a substantial risk of such impairment. In re Safriet, 112 N.C. App. 747, 436 S.E.2d 898 (1993). Likewise, where that parent of a child is unable to provide appropriate care and supervision for a child but makes their own arrangement for the child to receive such care and supervision, then the child cannot be dependent. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007); In re B.P., __N.C. App.__,__S.E.2d__(January 18, 2018).

On the positive side of the equation, where a parent’s acts or omissions create a reasonable likelihood of injury or impairment as of the time of the adjudication hearing, even when that injury or impairment has not transpired, an adjudication of neglect is appropriate. “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the [adjudication] proceeding” which requires the trial court to “. . . consider the conditions [in the home] as they exist at the time of the adjudication as well as the risk of harm to the child from return to a parent[.]” See In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010).

Additionally, even when a juvenile has been placed in an appropriate home and is no longer immediately affected by a parent’s inability to provide for the child’s care or supervision, the critical inquiry is whether the parent created the alternative care arrangement or whether the parents is merely acquiescing to a plan developed by a county DSS. In the latter case, “. . .it is not enough that the parent merely goes along with a plan created by DSS” and doing so continues to make the child’s status dependent. See In re L.H., 210 N.C. App. 355, 366, 708 S.E.2d 191, 198 (2011); In re B.P.,__N.C. App.__, __S.E.2d__(January 16, 2018).

Thus in such circumstances where neglect or dependency are alleged with regard to a juvenile, the critical inquiry is always with reference to the facts and circumstances surrounding the child as of the time of the adjudication. However, when assessing the evidence of such facts and circumstances for a time period up to the time of the adjudication, it is not enough for the trial court to assess only what acts and/or omissions have been undertaken by a parent. Rather, the court must find a nexus between those acts and present injury or impact on the child (or the imminent likelihood of the same) and, in those cases where the child has been placed with a third party, pay particular attention to who arranged the placement.

The Strange Case of In re C.P.: Permanency Planning, Judicial Warnings, and (Now) a Mandated Delay in Permanence for Children in Juvenile Court

Maybe it was a Tuesday that, but for the holiday, should have been a Monday. . .

Otherwise, there seems to be little other explanation for the North Carolina Court of Appeals most recent decision in the case of In re C.P. , __.N.C.App.__,__S.E.2d__ (January 2, 2018) where the Court effectively created a procedural mandate that amounts to what can only be called a “juvenile court mulligan”.

The case itself is fairly straightforward. It all begins on July 14, 2015, when the Orange County Department of Social Services filed a juvenile petition alleging that a thirteen-year-old child was a neglected and dependent juvenile. A hearing was held on August 6, 2015 and an order was entered on August 27, 2015 in which the trial court adjudicated the child and his older sister as neglected and dependent, and awarded custody of Carl and his sister to their adult half-brother. The Respondent-mother appealed the ruling. On October 4, 2016, the Court of Appeals reversed and remanded the case for a new hearing because the order did not result from a proper adjudicatory hearing or valid consent by Respondent Mother. See In re K.P., C.P., ___ N.C. App. ___, ___, 790 S.E.2d 744, 749 (2016). On remand, the trial court held an “adjudication/disposition and permanency planning hearing” on March 2, 2017. The trial court again adjudicated the child as a dependent and neglected child, and awarded guardianship of the child to his adult half-brother. This order, which was dated March 21, 2017, was again appealed by the Respondent Mother.

On appeal, the Court of Appeals reversed the adjudication of dependency due to the fact that the child had seemingly always lived with a suitable relative. This is not surprising since a dependency adjudication always requires not only that the parent, guardian or caretaker be unable or unwilling to provide appropriate care but also that there be no other suitable alternative care arrangement. See N.C. Gen. Stat. 7B-100(9). Also understandable is the Court’s concern with the trial court which removed reunification as a plan without making necessary findings that the parent cannot provide a suitable home within the next six months as it is required to statutorily find. See N.C. Gen. Stat. 7B-906.1(e).The rest of the Court’s holding, however, where the court vacates the trial court’s order because it removed reunification as a plan at the first permanency planning hearing, requires explanation which has yet to be forthcoming.

One can concede that the Court in this part of its opinion rightly asserts that N.C. Gen. Stat. 7B-906.1(g) requires the court at a permanency planning hearing to “. . .inform the parent, guardian, or custodian that failure or refusal to cooperate with the plan [of care] may result in an order of the court in a subsequent permanency planning that reunification efforts may cease.”

However, the Court stumbles when it wrongly concludes that this statutory language constitutes a required judicial warning shot before the plug is pulled on reunification. In reaching its ultimate conclusion, a number of errors seem to have been made. First, the Court appears to have completely ignored the fact that reunification may be dispensed with altogether at the Dispositional hearing (well before any permanency planning hearing) if the trial court makes written findings of the existence of aggravating circumstances in its adjudicatory order. See N.C. Gen. Stat. 7B-901; In re G.T.,__N.C. App. __,__S.E.2d__, affirmed, __N.C.__ (December 22, 2017). Secondly, the Court seems to additionally ignore the language which proceeds subsection (g) in 7B-906.1 which provides that the trial court may at the first permanency planning hearing order a sole plan of termination and adoption (which as a  permanent plan negates the very concept of reunification) This is possible, according to N.C. Gen. Stat 7B-906.1, either because the parent cannot provide a safe, permanent home for the child within the next six months ( subsection e) or because the child has been in the custody of a county department of social services for 12 of the most recent 22 months and the parent has either (a) abandoned the child; (b)has committed murder or voluntary manslaughter of another child of the parent; or (c) has aided and abetted , attempted, conspired or solicited to commit murder or voluntary manslaughter of the child or another child of the parent. See N.C. Gen. Stat. 7B-906.1(f). In fact, the only factors that can keep a court from taking reunification away as a plan in such circumstances is if the permanent plan is already guardianship or custody with a suitable third party; termination is in some way contrary to the child’s best interest; or the county department of social services has not provided the juvenile’s family with necessary services to enable the child home. See N.C. Gen. Stat. 7B-906.1(f)(1-3).

Finally and most damaging, the Court appears to miss the very significant policy implications of giving a parent at a permanency planning hearing what, in golfing parlance, would be deemed a “mulligan”.  While there are no time requirements imposed on hearing a permanency planning hearing, and while it is conceded that the permanency planning hearing in In re C.P. took place right after Disposition, the vast majority of juvenile cases do not follow this pattern. In fact, most permanency planning hearings take place at a point where nearly a year has passed while a child has remained in the custody of a county department of social services. The holding of In re C.P. has the frustrating effect of unnecessarily prolonging a child’s stay in custody without the possibility of relief at the first permanency planning hearing.

Why?

Apparently because the trial court will be from now on required to inform the parents (if it hasn’t already done so a number of times) that they need to get their act together or bad things might happen down the road. In the vast majority of cases, if the parents haven’t gotten their act together in nearly a year, they aren’t suddenly going to come to their senses simply because a trial judge urges them to do so.

This part of the holding in In re C.P. is bad for children, because now they have to wait even longer for a permanent plan that does not involve reunification without any good reason, legal, equitable, or otherwise. It requires rectification, sooner rather than later, whether that comes through a revised opinion before the expiration of the mandate or reversal by the North Carolina Supreme Court.