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.
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