Legislative Action is Urgently Required to Guide North Carolina Juvenile Courts About Ceasing Plans of Reunification and Reunification Efforts

When is it appropriate for a District Court Judge to cease reunification efforts in a juvenile case? When is it appropriate for that judge to change the plan of care to eliminate reunification as a plan? These two burning questions presently confound judges and lawyers in juvenile courtrooms across North Carolina due to the uncertainty of the law in this area. It is time for the North Carolina Legislature to step in and provide some clarity in the absence of resolution of the appellate level.

The problem began in 2018 with the case of In re C.P., where a panel of the North Carolina Court of Appeals held that at the first permanency planning hearing, reunification must be part of the initial permanent plan and may only be eliminated as a plan of care at a subsequent permanency planning hearing. In re C.P., __N.C. App.__, 812 S.E.2d 188 (2018). The C.P. Court further held that with regard to ceasing reunification efforts, a court could only suspend such efforts to the extent that it provided prior notice to the parents that failure to cooperate with the permanent plan could result in an order from the court ceasing reunification efforts. Id.  The problem is that C.P. contradicts both the relevant statute and earlier case law.

North Carolina General Statute 7B-906.2 provides in relevant part that at any permanency planning hearing there shall be both a primary and a concurrent plan and that “[r]eunification shall remain a primary or secondary plan unless the court made findings under [N.C. Gen. Stat} 7B-901(c) or makes written findings that reunification efforts would be unsuccessful or would be inconsistent with the juvenile’s health or safety.” N.C. Gen. Stat. 7B-906.2. Under the statute, reunification as a plan and the continuation of reunification efforts are logically connected: if it is contrary to the best interests of the juvenile or futile to further engage in reunification efforts, then the plan should be something other than reunification. The holding of C.P. undoes this logical unity making it possible for a trial court to cease reunification efforts while being required to continue with a plan of reunification. Furthermore, the decision seems to completely ignore the ability of a trial court to cease reunification efforts where a situation arises as contemplated by N.C. Gen. Stat. 7B-901(c)-where the court ceases reunification efforts after a finding that aggravating factors have been found at adjudication which can include murder of another child, felony assault of the same, or committed a sex offense against another child, among other things). See N.C. Gen. Stat. 7B-901 (c)(3).

Further, another panel of the Court of Appeals, in a 2017 decision in the case of In re H.L., has already held that cessation of reunification efforts is permissible at the first permanency planning hearing. In re H.L., __N.C.App.__,807 S.E.2d 685 (2017). Thus the panel’s holding in In re C.P. creates a split in authority at the level of the Court of Appeals, a split that has not been resolved by the collective North Carolina Court of Appeals sitting en banc or the Supreme Court despite calls for the same. See In re M.T.L.Y., __N.C. App.__,__S.E.2d__ (May 21, 2019).

As the most recent case involving an appeal of a permanency planning order eliminating reunification as a plan has demonstrated, continued confusion will continue until the legislature resolves the present case law conflict. Simplicity, like brevity, is the soul of wit and should guide legislative action by restoring the previously existing logical identity between the propriety of reunification efforts and the continued existence of a permanent plan of reunification. If it is a bad idea or a waste of time to further reunification efforts, there should be no plan of reunification required. Furthermore, since reunification efforts may be suspended right after adjudication if factors exist such as are enumerated in N.C. Gen. Stat. 7B-901(c), then there is no reason to require elimination of reunification as a plan to be limited to a subsequent permanency planning hearing.

Parents, guardians, or custodians of children are on notice the minute they are summoned to juvenile court that their parenting skills may be less than sterling. While the mere allegation of inappropriate parenting requires clear and convincing proof and an adjudication of abuse, neglect or dependency by a trial judge, any ambiguity about what a parent should do with regard to their parenting is for the most part resolved at the time the adjudication order is handed down. This is all the warning a child’s custodian or caretaker needs and all that should be required when the first permanency planning hearing is scheduled and the court should have the latitude to not only advance the child’s best interests but to do so in a timely manner that brings permanence sooner rather than much later.