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.
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