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.