The Doctrine of Patia Potestas Confers Child Custody Upon Mexican Nationals Over Their Children and is Entitled to Full Faith and Credit in North Carolina Courts

            

Patia Potestas is a doctrine of custodial authority of Roman origin which originally conveyed absolute and despotic rights of a father (Paterfamilias) over his children. Gonzales v. Preston, 107 F. Supp 3d 1226 (M.D. Ala. 2015); Saldivar v. Rodela, 879 F. Supp. 2d 610 (W.D. Tex. 2012); Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). As the head of his household, Roman law also bestowed upon the father similar power over the persons of his grandchildren, and other descendants. William Smith, Patria Potestas in John Murray, A Dictionary of Roman Antiquities 873 (London 1875). Whether this power in its extreme forms was actually employed on any consistent basis is a matter of debate. See Steven Thomson, Was Ancient Rome a Dead Wives Society? What Did the Roman Paterfamilias Get Away With? Journal of Family History V. 31, No. 1 (January2006), 3-27. Nevertheless, it is clear that the Roman Paterfamilias did enjoy widespread authority over the activities of his family relations until his death, unless he had previously emancipated a family member from such authority. Id.


The doctrine of Patia Potestas continues to have legal vitality today. The most notable example can be found in the laws of the State of Mexico which has codified the doctrine in its Federal Civil Code. C.C.D.F. art. 411 ("In the relationship between ascendants and descendants, children, regardless of their age, status or other conditions shall honor and respect their parents and other relatives"). The present incarnation of Patria Potestas has evolved from being purely authority to be exercised by the male head of the household to a more gender neutral duty which not only provides custodial authority to both parents but also imposes obligations upon parents to provide for the needs of their children and for children to obey their parents. Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). As a codified legal doctrine, Patria Potestas "constitutes the 'most comprehensive' right that a parent can exercise over the person and property of his or her minor children." Saldivar v. Rodela, 879 F. Supp. 2d 610 (W.D. Tex. 212). Furthermore, it creates a constellation of legal rights for each biological parent over a child, starting with formal custody but also includes the right to care for the child and make substantive decisions about the child’s life.Gonzales v. Preston, 107 F. Supp 3d 1226 (M.D. Ala. 2015); Patricia Begne, Symposium on Comparative Custody Law, North American Parental Authority and Child Custody in Mexico, 39 Fam. L.Q. 527 (Summer 2005). 


With the immigration of large numbers of individuals and families from the State of Mexico each year,, litigation over issues of child custody among persons from whose origins are from the State of Mexico will naturally require examining whether the doctrine of Patia Potestas applies. If in fact it I found to apply, a reviewing court must give full faith and credit to the custodial authority imposed by Mexican Law in the same way it would do so with regard to a formal child custody order.Diaz v. Ibarra, No. CV-19-03183-PHX-DWL (D. Ariz. Sep. 13, 2019). Whallon v. Lynn, 230 F.3d 450 (!rst Cir. 2000); Gonzalez v. Pena, 194 F. Supp. 3d 897 (D. Ariz. 2016); DeLaRiva v. Soto, 183 D.Supp. 3d 1182 (M.D. Fla. 2016); Aguilera v. De Lara, 2014 WL3427548, 2 & n 1 (D. Ariz. 2014); Seaman v. Peterson, 762 F. Supp. 2d 1363 (M.D. Ga. 2011).  

Establishing Nexus between Substance Abuse and Adverse Impact on Child Critical in Neglect Cases

Many, if not most juvenile cases, involve substance abuse as at least one problem that impairs a parent, guardian, caretaker or custodian’s ability to provide effective care for dependent children. When formulating pleadings that allege neglect due to substance abuse in the home, it is essential that the pleadings set forth allegations that there is substantial evidence a child either suffers physical, mental, or emotional impairment, or that the child is at a substantial risk of suffering such impairment, as the result of substance abuse in the child’s home. See In re K.J.B., 248 N.C. App.__, 797 S.E.2d 516 (2016); In re E.P., 183 N.C. App. 301, 645 S.E.2d 772, aff’d per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007).

The import of this established legal doctrine was touched upon most recently in the North Carolina Court of Appeals opinion in In re : J.C.M.J.C., J.J.C.C., C.O.C, __N.C. App.__,__S.E.2d__(October 15, 2019). In that case, the Court of Appeals reversed a trail court’s adjudication of neglect where allegations were that a child’s clothes “smelled of marijuana” without other evidence that the child welfare suffered as a result of substance abuse in the home.

Juvenile pleadings, and the accompanying substantial evidence of both impairment and adverse impact, can come in many forms. For example, a newborn child testing positive for controlled substances at birth demonstrating listlessness, tremors, unabated crying, physical defect, or impaired development can meet the evidentiary standard. See In re Leftwich, 135 N.C. App. 67, 518 S.E.2d 799 (1999). Likewise, demonstrating that a child was in the sole care of an impaired individual whether in the home or in an automobile. See In re L.W., 175 N.C. App. 387, 623 S.E.2d 626, appeal dismissed and disc review denied, 360 N.C. 534, 633 S.E.2d 818 (2006); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).  Finally, in cases where there is household financial instability, allegations and accompanying proof that the household income is being siphoned away to support a drug habit might also be sufficient to meet the standard.

The critical point is that allegations and evidence of substance abuse, standing alone, will not be sufficient to establish neglect unless a nexus is made between the complained of activity and the welfare of a child in the home.

North Carolina's Juvenile Justice Reinvestment Act: No Change in Juvenile Recidivism and a $20 Million Dollar Taxpayer Boondoggle?

In 2017, the North Carolina General Assembly passed Senate Law 2017-57, otherwise known as the Juvenile Justice Reinvestment Act, which raised the Juvenile Court jurisdiction in North Carolina to include offenses incurred by 16 and 17 year olds. This expansion of juvenile court jurisdiction, premised in part upon the notion that juveniles commit offenses largely due to psychological immaturity (their brains aren’t fully developed), is said by some to have the potential to double the population being served in the Juvenile Justice System. If the advocates that led to the passage of this legislation are correct, the public will benefit in a number of ways. These include a reduction in overall incarceration costs (since juvenile offenders will no longer be able to serve sentences in excess of their 20th birthday); greater ability to provide necessary psychological and psychiatric services to this population; and a reduced recidivism rate (since with all the psychiatric and psychological treatment these juveniles will be getting and with their increased psychological maturity, they will be less likely to want to commit offenses in the future). In a nutshell, the Juvenile Justice Reinvestment Act is claimed to save money and reduce crime as a result of “raising the age” of juvenile accountability in North Carolina.

While there seemed to be little more than cheerleading in the days that led to the enactment of this legislation, now that "Raise the Age" is about to begin, it would be an appropriate time to examine two of the essential claims that supported the bill’s passage.

When one examines the first claim made in support of raising the age, that the people of the State of North Carolina will save money, the States own reporting seems to demonstrate that the claim is unsupportable and largely false. Estimates provided by the Juvenile Jurisdiction Advisory Committee Interim Report this year show needed expenditures of $5.7 million in Fiscal Year 2020 alone with a slightly lesser sum recurring in the years thereafter. Juvenile Jurisdiction Advisory Committee Juvenile Age Interim Report, January 15, 2019. The Committee Report also recommends that the General Assembly fund the state court system’s “existing deficiencies at a cost of $15 million in Fiscal Year 2020” and at a rate of $14.5 million in every year thereafter. Interestingly, the Committee Report mentions no offset monies coming from the North Carolina Division of Prisons (or any other participant in the adult court system). So one can only assume that these funds will be additional expenditures with savings arising if, and when, crime goes down.

The second claim, that crime will go down as juvenile recidivism rates decline, is also likely to be false. In a law review article published in the Journal for Legal Studies in 2015, Professor Charles E. Loeffler of the University of Pennsylvania and Lecturer in Law Ben Grunwald of the University of Chicago Law School report the results of their own study of the effect of “raise the age” as it was implemented in Illinois and specifically with regard to its impact on juvenile offenders in Chicago. Charles E. Loeffler and Ben Grunwald, Decriminalizing Delinquency: The Effect of Raising the Age of Majority on Juvenile Recidivism, 44 J. Legal Stud. 361-388 (June 2015). According to their research, which utilized a difference-in-differences design with multiple control groups, increasing the maximum age for juvenile court did not affect the rate of juvenile recidivism in Chicago. Other studies, according to the authors, have reached similar conclusions in other jurisdictions. Another interesting conclusion drawn by the authors is that previous studies used to support the raise the age legislation were potentially flawed. These studies, which showed a higher rate of recidivism among juveniles transferred to the adult system, focused on juveniles who had committed serious felonies, which are relatively rare, instead of the vast majority of juvenile offenses that involved misdemeanors and lesser felonies. Thus, it may be the case that the raise the age legislation was fashioned as a remedy for a problem that might not have even existed.

Despite all the fanfare and media hype that led to the passage of this State’s “Raise the Age” legislation, it seems likely that the people of North Carolina will not be rewarded with any significant change in the nature of juvenile re-offense patterns. Rather, they can expect juveniles to re-offend in much the same way as they did before the passage of the legislation. Furthermore, taxpayers can expect a bill of nearly $5.7 to $20 million dollars each year beginning in 2020.  What will they get for their money? It seems not a whole lot of anything.

N.C. CHAPTER 7B-600 GUARDIANSHIP: THE PERMANENT PLAN THAT INCREASINGLY FAILS TO LIVE UP TO EXPECTATIONS

Guardianship is supposed to be a permanent plan for a juvenile but increasingly is viewed as a temporary arrangement for children until the child’s parents can get their act together. This view is contrary to the spirit and letter of the law and district court judges should be exceedingly cautious to assure that appointed guardians are in it for the long haul.

As a general proposition, Guardianship in a Juvenile Case pursuant to N.C. General Statute 7B-600 can be conferred at any time during the pendency of a case, even prior to the adjudication if the child appears at a hearing with no parent. N.C. Gen. Stat. 7B-600(a). For the most part, however, guardianship is only appropriate only where “the court has determined that the appointment of a relative or other suitable person as guardian of the person for a juvenile is a permanent plan. Id. at (b).

The reason that guardianship is an ideal permanent plan is that, aside from termination of parental rights, it is structurally the most permanent. To dissolve a guardianship, it is entirely insufficient to merely show that a material change of circumstances has transpired with regard to either the parent or the child. In re Williamson, 77 N.C. App. 53 (1985). Rather, one must show the guardian is unwilling or unable to serve, has neglected the child, the guardian is unfit or that continuation of the guardianship is contrary to the best interests of the juvenile. Id. So it really doesn’t matter that mom has “found Jesus” and spends her days distributing alms to poor or that Dad has suddenly decided, after 41 years, to get his first job, buy a home and marry his fifteenth paramour. 

All of this is decidedly immaterial.

But it will be objected to that the Guardian must be willing to serve as guardian and in light of changed circumstances, many guardians, usually paternal or maternal grandparents, are all too willing to return to the status of grandparents and let the actual biological parents take charge for once. Thus, the occasion which gives rise to many guardianship dissolutions.

This specter, which is haunting our fruited plain, must be confronted head-on.

Guardianship, to be a permanent plan, should be, well, . . . permanent! This means that when the court is examining a proposed guardian about their ability to serve as guardian physically and financially and about whether they understand the responsibilities of guardianship, and exchange like this should probably occur:

JUDGE:                 SO AFTER EXAMINATION, I WILL FIND THAT YOU ARE PHYSICALLY AND FINANCIALLY ABLE TO PROVIDE FOR LITTLE JIMMY BUT I HAVE ONE MORE QUESTION FOR YOU.

PROPOSED

GUARDIAN:        YES YOUR HONOR, ASK AWAY.

JUDGE:                 DO YOU KNOW WHAT PERMANENT MEANS?

PROPOSED

GUARDIAN:        WHY YES, THAT MEANS A LONG TIME.

JUDGE:                 MORE THAN “A LONG TIME”. IT CAN MEAN UNTIL YOU ARE PLANTED IN THE GROUND FERTILIZING DAISIES.

PROPOSED

GUARDIAN:        YOU MEAN WHEN I AM DEAD?

JUDGE:                 STONE COLD DEAD. I WANT YOU TO BE ABLE TO SAY YOU BE WILLING TO SERVE AS LITTLE JIMMY’S GUARDIAN NO MATTER WHAT MAY COME. IF YOUR SON AND HIS GIRLFRIEND STOP USING DRUGS, NO MATTER. YOU STILL WILL BE JIMMY’S GUARDIAN. IF THEY CURE CANCER, YOU STILL WILL GUARDIAN. IF THEY GIVE YOU $70 MILLION DOLLARS, YOU WILL STILL BE GUARDIAN. THAT KIND OF PERMANENT, UNTIL JIMMY TURNS 18 OR YOU ARE DEAD, WHICHEVER COMES FIRST.

PROPOSED

GUARDIAN:        WELL, SINCE YOU PUT IT THAT WAY. . . .

Every child deserves permanence. Permanence should last until a child reaches the age of majority, where, presumably, the child can handle great shocks to the system, like moving to another household and having another care provider. Thus proposed guardians should be required to assure the trial court that they aren’t going to buckle at the knees the first sign that the biological parents are finally growing up. Guardianship can only be conferred when a parent continues to demonstrate over a period of nearly twelve months, that they are fundamentally unfit to parent. Once guardianship is conferred, a parent that has demonstrated unfitness has forfeited future claims to the care and custody of their child, even if they later show signs of rehabilitation. This is why judges should hold prospective guardians accountable. Forfeiture is forfeiture and permanence is permanence. The best interests of the child require, except is truly extraordinary circumstances, that there can be no going back.

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.

Four Principles Trial Courts Should Observe When Dealing with the Issue of Juvenile Parent Representation

Very often juvenile court judges encounter indigent parties in their courts who have been appointed court appointed counsel who, for one reason or another, wish no longer to be represented by their appointed attorney. The reasons can be many, from a clash of personalities, to disagreements over legal strategy, to more egregious situations such as ineffective assistance of counsel. When a motion is made by a party or the party’s attorney to allow appointed counsel to withdraw, it is especially important to keep a few critical guidelines in mind in order to avoid an appeal and subsequent reversal, which not only may be frustrating but most significantly can cause a delay in permanence for children in juvenile court.

The first principle to keep in mind is that a parent in a juvenile proceeding has an absolute right to representation. In re L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007). This right permits the parent to hire their own counsel or, if they are indigent, to court appointed counsel. N.C. Gen. Stat. §7B-602; §7B-1101.1. The only exception to the representational rule is if the parent waives their right to counsel. Id.

To be effective, a waiver must both be knowing and voluntary. Id.; In re J.K.P., 238 N.C. App. 334, 767 S.E.2d 119, (2014). It is important to note that the North Carolina Court has identified a number of instances which do not constitute a waiver of the right to counsel. For example, requesting new counsel be appointed by a party does not constitute a waiver of court appointed counsel. See In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004) (request for different counsel is not a waiver of counsel). Additionally, it should be pointed out that if a parent does waive the right to hire their own counsel or have court appointed counsel, the parent has the right to represent themselves. N.C. Gen. Stat. §7B-602   Regarding this, such pro se representation is very often discouraged given the complexity of juvenile law. The trial judge must assure that the parent is carefully examined and makes sufficient findings of fact to any subsequent appellate tribunal that the waiver given was both  knowing and voluntary. Id; In re A.Y, 225 N.C. App. 29, 737 S.E.2d 160 (2013).

The second principle to keep in mind is that while a parent has an absolute right to representation, a parent is not entitled to representation of their choice in a court appointed setting. In order to release court appointed counsel, the court is not release counsel unless the reason for the relief counsel involves egregious conduct. Here, a number of possibilities come to mind which tend toward attorney negligence and lack of involvement in the case. It is important to note, however, that mere dissatisfaction with counsel, without more, is insufficient for the court to withdraw counsel. In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004)

The third principle to keep in mind is that on occasion, a parent’s behavior may be so egregious that they may forfeit their right to counsel. State v. Blakeney, 245 N.C. App., 782 S.E.2d 88 (2016). Forfeiture, unlike waiver, does not depend upon a parent’s knowing and voluntary waiver but instead relates specifically to extreme conduct which prejudices the administration of justice. Examples of where forfeiture might exist include multiple attempts to delay trial; offensive or abusive behavior; disruption of court proceedings; or refusal to acknowledge the trial court’s authority. Id.

Finally, when allowing counsel to withdraw, it must be done following notice being given to the parent by counsel. Notice is required to a parent of an attorney’s intention to withdraw. This act assures that the parent has the ability to request new court appointed counsel if it is their intention to do so. In re M.G., 239 N.C. App. 77, 767 S.E.2d 346 (2015). Without some evidence of a parent receiving some form of notice from their attorney, a trial court cannot adequately assure that a parent’s rights are being protected or know the parent’s position regarding representation. Proceeding to allow counsel to withdraw in such circumstances brings into question whether the court is upholding fundamentally fair procedures in any ensuing trial. Where such questions arise on appeal, it almost invariably leads to reversal or vacation of the order and remand.

The Emerging Jurisprudence on Threatening Student Speech

            

In an era which has seen multiple school shootings across the United States, the specter of student initiated violence has caused school boards and administrators to reconsider certain types of student speech that only a few decades ago would have been thought merely in poor taste or, at most, warranting a trip to the principal’s office. The violent acts and loss of human life at Columbine and Marjory Stoneman Douglas High School have caused a wholesale reexamination of speech of a threatening nature which either betrays a desire to immediately bring physical harm to individuals within the school or school community or states a plan to carry out such an act in the near future.

            Like other forms of speech which has a proclivity toward substantial disruption or interference with school activities, threatening speech which may be restricted or suppressed because of its potential impact on the functioning of a school. See, for example, Johnson v. New Brighton Area Sch. Dist., No. CIV A 06-1672, 2008 WL 4204718, at *1 (W.D. Pa. Sept. 11, 2008); Boim v. Fulton Cty. Sch. Dist., 494 F.3d 978, 985 (11th Cir. 2007). However, it has increasingly been the case that showing disruption is not always necessary when addressing threatening speech of a student. J.R. v. Penns Manor Area Sch. Dist., 2019 WL 96041 (2019).  Rather, justification has also been found in the fact that a school is a special environment with particular safety challenges that cannot be accomplished if threatening violent speech is tolerated.  Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (2007); J.R. v. Penns Manor Area Sch. Dist., 2019 WL 96041 (2019). The rational for the latter approach is that if student speech endorsing drug use can be absolutely prohibited, then speech that directly threatens violence should likewise be able to be absolutely banned. Id.

            Thus in a case where a student was suspended for keeping a notebook diary which discussed the creation a Nazi-like group who would commit shootings on campus as well as in the school district at large, the Court vacated an injunction which prohibited the school district from carrying out the suspension of the offending student as well as diverting the child to alternative education and divulging the child’s conduct to third parties. Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (2007). In reaching its decision, the Fifth Circuit Court of Appeals concluded that the disciplinary action against the student violated no protected right, as specific threatening speech to a school or its population was unprotected by the First Amendment. Id.  Thus it was not relevant whether the school could show a substantial disruption. Rather, as the Court stated that “. . . when a student threatens violence against a student body, his words are as much beyond the constitutional pale as yelling "fire" in crowded theater. . . and such specific threatening speech to a school or its population is unprotected by the First Amendment. School administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second-guessing their judgment as to whether the threat posed a real risk of substantial disturbance.” Id.

            Likewise, where a student discussed with his friends over lunch who he would kill at the school and why, the United States District Court for the Western District of Pennsylvania dismissed a constitutional claims in a lawsuit filed by parents. J.R. v. Penns Manor Area Sch. Dist., 2019 WL 96041 (2019). Like the Court in Ponce, the District Court concluded that the student’s speech was not constitutionally protected. Id. Furthermore, the Court concluded not only could the school forecast substantial disruption based upon the content of the speech and the student’s actions but even outside of evidence showing the potential for a substantial disruption, the school’s action were justified because a "vital" governmental interest in stopping student violence and promoting school safety justified school officials in exercising control over student speech. Id.

              Thus, while schools may ban threatening speech where there is a reasonable forecast of educational disruption, the new jurisprudence allows the school to claim a special status which warrants special protections. This new jurisprudence, which disqualifies threatening speech from the realm of constitutional protection, allows school administrators to act decisively to address such speech and protect student populations through expulsion and other acts aimed at sequestering troubled kids who most often are the perpetrators of school violence. The question now is whether such administrators have the will to exercise such discretion as they have been granted.

A Primer on Reinstatement of Parental Rights

                In 2013, the North Carolina Legislature responded to concerns about large numbers of foster children becoming “legal orphans”. This situation arose when the parental rights of the foster child’s biological parents had been terminated but for one reason or another the child could not be adopted. On occasion, the biological parents sought to reform their behavior following the termination of their parental rights and despite their previous misdeeds, became appropriate and fit persons to raise children once again. When faced with a lack of placement options, some county social services agencies sought out these reformed parents as a placement for the parents’ former children. Sometimes the placement worked well.

Normally when an appropriate placement is found that supports and maintains a juvenile over the long haul, a county social services agency will assist the placement in adopting the child. However, in the case of placement with reformed parents, something seemed awkward about a biological parent having to adopt their own child. Moreover, the fact of past parental unfitness presented a real conundrum for clerks of court who would have to approve the adoptions. To overcome these problems, the Legislature developed a statutory scheme for reinstatement of parental rights.

While seldom used in day to day practice in Juvenile Court, the reinstatement of parental rights provision of the Juvenile Code found at General Statute §7B-1114 can be a most useful alternative to allowing a foster child to languish is foster care until they reach the age of 18. To qualify, the foster child must be at least 12 years of age (absent extraordinary circumstances); must not have a legal parent; must not be in an adoptive placement; and must not be likely to be adopted in a reasonable period of time. (N.C. Gen. Stat. §7B-1114(a)) Additionally, the plan for the child must no longer be adoption or, in the alternative, the order terminating parental rights must have been entered at least three years before the filing of a motion to reinstate parental rights. Id. The juvenile whose parents’ rights have been terminated, the county social services agency with custody of the juvenile, or the guardian ad litem attorney all have standing to file a motion to reinstate parental rights but not the child’s former legal parents. Id.

Once filed a motion to reinstate parental rights is required to be scheduled within 60 days by the clerk for a preliminary hearing. (N.C. Gen. Stat. §7B-1114(e)). Notice must be given of the hearing to the juvenile, the juvenile’s GAL, the county department of social services, and the former parent whose rights the motion seeks to reinstate. Id.

At the preliminary hearing, the court may consider any evidence (even hearsay evidence) that is relevant, reliable and necessary to determine whether reinstatement of parental rights is consistent with the juvenile’s best interests. (N.C. Gen. Stat. §7B-1114(g)). After hearing the evidence, the Court must make written findings of fact regarding relevant criteria which might include the efforts made to achieve adoption or permanent guardianship for the juvenile; whether the former parent has remedied the conditions that led to the juvenile’s removal from the home and placement in foster care; the age and maturity of the juvenile; the former parents’ as well as the juvenile’s willingness to resume contact and have parental rights reinstated; and services that would be needed by the juvenile and the former parents if parental rights were reinstated. Id. At the conclusion of the hearing, the court must either dismiss the motion or order that the juvenile’s permanent plan become reinstatement of parental rights.

When a court changes a plan to reinstatement of parental rights, the court must continue to conduct reviews at least every six months which may be combined with required post termination of parental rights review hearings. At any subsequent review hearing, the court may order visitation between the juvenile and the parents and may order placement in the parents’ home subject the supervision and placement discretion of the county department of social services. (N.C. Gen. Stat. §7B-1114(i)).

Finally, absent exceptional circumstances, within twelve months of the change in the juvenile’s plan, the court must either dismiss or grant the motion for reinstatement of parental rights. (N.C. Gen. Stat. §7B-1114(j)). An order granting a motion to reinstate parental rights restores all rights and obligations that would be normally be bestowed upon a parent, except that it alleviates the obligation to pay child support for services provided the child from the date of parental right termination to the date of parental rights reinstatement. (N.C. Gen. Stat. §7B-1114 (k); (n)). Oddly, while the order of the court reinstates parental rights, it does not vacate the prior order terminating parental rights. N.C. Gen. Stat. §7B-1114 (m). Rather the order (in effect rather than in fact) modifies the termination order based on the changed circumstances which surround both the juvenile and the parents as well as the change in what ultimately will serve the best interests of the juvenile. It is this latter concern which is and which must guide all actions by a district court judge regarding the status of a juvenile in juvenile court.

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.