Pierre Bourdieu, Habitus and the Dependency Case

    Among the legacies of the French sociologist Pierre Bourdieu was his concept of habitus, a term widely construed by Bourdieu but taking on dimensions similar to the societal infrastructure and superstructure that surrounds an individual historically which in large part responsible for the individuals attitudes, disposition and social destiny. Quoting Bourdieu's Invitation to a Reflexive Sociology, he states, " Habitus. . . is an open system of dispositions that is constantly subjected to experiences, and therefore constantly affected by them in a way that either reinforces or modifies its structures." He goes on to state that, while habitus is not eternal, ". . .there is a probability, inscribed in the social destiny associated with definite social conditions, that experiences will conform to habitus, because most people are statistically bound to encounter circumstances that tend to agree with those that originally fashioned their habitus."(Bourdieu, 133). Thus, an individual's social trajectory, statistically, is likely to be the one that is confirmed by the individual's habitus because the individual won't know any better and will be resigned to such a trajectory. In such circumstances, such a trajectory has become doxically ingrained and thus seems not only to be part of the nature of things but inevitable, the entire possibility of a different or better world not even being a possible subject for discourse.
    Of course, the world is full of exceptions, Bourdieu being one of the most notable, having ascended from a member of an outcast tribe situated in a rural French backwater to being a Professor at the College de France. However, possibility is not probability, and for every Bourdieu there are countless individuals who will never have the occasion to aspire to such greatness. If Bourdieu is correct, culture is structurally rigged in such a way as to gives rise to conditions surrounding the individual which in almost every case will lead to the individual sabotaging his own trajectory, largely without ever knowing he is doing so.
    The overwhelming number of child welfare cases that appear in North Carolina's juvenile courts involve individuals who lack social capital: they are often the poorest of society, they lack insight and training necessary to parent, and very often have taken on such a huge responsibility too many times. North Carolina, at least as contemplated by General Statute 7B, has mandated State intervention in the sacred sphere of the parent/child relationship only where a child is faced with a situation where the child has been abused, neglected or dependent. As the Supreme Court has stated in Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), ". . . absent a finding that parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody and control of their children must prevail." That being said, many families do experience State intervention because they have neglected the welfare of their children. The law further requires that the State intervene in certain circumstances where a child has been adjudicated in juvenile court to help the parent strengthen the familial bond and otherwise correct the conditions that led to the intervention of the State. Many families, despite intensive intervention by the State, fail to make any change or even exhibit a positive response. Instead, they continue to coordinate with the inertia of their habitus, doing things as seem to them to be in the realm of the ordinary, the natural, whether that means continuing to be violently assaulted by an intimate partner, to abuse controlled substances, or to live in squalor. If Bourdieu is correct, these individuals are in all probability doomed to a particular historical trajectory, which in all likelihood was the same trajectory of their ancestors, from their parents to their grandparents and beyond. Bourdieu widely criticised the French Educational system for its perpetuation of a culture where societal elites prevailed despite allegedly democratic reforms aimed as moving the working class and petit bourgeoisie into the Academy. If Bourdieu is correct, North Carolina, and for that matter every State government, is doomed to experience the same failure experienced by the French Educational System. It may very well be the case that familial behaviour, inculcated for generations, has been so internalised that it is now a visceral response, being purely a bodily reflex, not subject to intellectual discourse which is the very remedy being suggested when the juvenile courts order parents to comply with substance abuse counselling, parenting classes, and in-home family preservation efforts.
   The high culture of North Carolina cannot speak the language of the low culture, let alone can it get that low culture to even want to hear and understand. So is the State to continue to perpetuate the illusion that it is helping when in reality it is doing nothing more than absurdly tilting at windmills? Perhaps the intent is enough, regardless of the lack of outcome. As in the case of Camus' hero Sisyphus, it matters not that the rock, so painfully pushed up the hill, nevertheless falls down once again, in a scenario which will be repeated ad infinitum.  Not the outcome which is absurd, but rather the process, the response to the absurd world, is instilled with meaning. If so, all the better. Governments are good at doing things that individuals lack the capacity to otherwise do. But let it do the deed honestly (perhaps inscribing it in the juvenile code), acknowledging to all the world that it will probably fail but despite all is going to try to uplift juvenile court families anyway.

The Brave New World: Post P.D.R. Legislation Creates a Dilemna for Parent's Attorneys

     The North Carolina Legislature's Session Law 2013-129 has put an end to the quandary courts were facing in having to determine whether a parent who suffered a disability required a guardian of assistance or a guardian of substitution. This quandary, of course was the result of the Court of Appeals decision in In re P.D.R.,713 S.E.2d 60; 2011 N.C. App. LEXIS 1054, review granted, 365 N.C. 342, 717 S.E.2d 369, reversed and remanded, 2012 N.C. LEXIS 269 (N.C., Apr. 13, 2012) where the Court of Appeals determined that trial judges must determine whether a guardian is of assistance, or, pursuant to N.C. Rule Civ. Pro. 17, one of substitution. However, such legislation, no doubt well intended by its sponsors, has lead to a pair of unfortunate consequences for parent's attorneys.
    As mentioned in an earlier post (In re P.D.R., infra), the assistance/substitution dichotomy was an important distinction even if one of the reasons for the Court of Appeals decision ( whether N.C. Gen. Stat 15A-1242 allows a parent to waive counsel when they have been appointed a guardian) has been overruled. If a guardian is one of substitution, then, pursuant to Rule 17, the parent's opinion is a nullity-it simply doesn't matter. What matters is the opinion of the appointed GAL, who, acting in the best interest of the parent, makes the decisions for that parent. A guardian of assistance, on the other hand, is ancillary to that of the parent who retains their ability to make decisions in a case, the GAL only being there to help the parent make those decisions.
   With legislative action, N.C. Gen. Stat. 7B-602 has been amended to require that the trial court, when confronted with parental disability, conduct a hearing on whether the parent is competent. If not, the court may (translated, should) appoint a guardian of substitution. Guardians of assistance are no longer permitted by statute.
    For the parent attorney, this creates a new world of problems, to wit: (1) if the parent is truly disabled and unable to assist in defence, then the solutionprovided by N.C. Gen. Stat. 7B-602 will effectively remove the parent's ability to participate in the defence, except derivatively through the GAL; and (2) a parent who receives a GAL is, at very least, incompetent, which very much plays well toward the position of the DSS which, in one form or another, has stated that the parent is disabled in some way in terms of parenting which underlies the child's status as abused, neglected or dependent. In large part, a competency hearing conducted pursuant to N.C. Gen. Stat. 7B-6023 makes the petitioners case before it is even heard.
   Whether to play the disability card or not is, of course, within the sound discretion of the trial attorney. However, these type of decisions have a way of coming back on the attorney who makes a decision, the case goes poorly and the child is adjudicated, and then the case, following disposition, goes up on appeal. No doubt one of the issues that will be raised by the eager and zealous IDS attorney will be the effective assistance of counsel, whether this sound discretion was indeed sound enough.
  

In re P.D.R.: Guardians of Assistance or Substitution

      There has long been ambiguity in North Carolina about the consequences of appointing a guardian for a parent in an abuse, neglect, or dependency case. On its face, North Carolina General Statute 7B-1101.1(c)  authorises the trial court to appoint a guardian for a parent where ". . .there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest." A district court judge, on the court's own motion or on motion from a party, must conduct a hearing, however brief, on whether such a reasonable basis exists to appoint a parent a guardian. Up until two and a half months ago, the judge's decision ended the inquiry: either a parent required assistance to act in their own interest or not, and if not, they were appointed a guardian who would assist the parent's legal counsel in trying the case.
     Yet, despite the simplicity of the statute's wording and the minimal procedural requirements that the statute imposes, many who have been in such proceedings found them self asking troubling questions. For instance, what does it mean for a judge to find that it is reasonably likely that a parent is incompetent? Does this make them incompetent? If so, did the legislature create another process in addition to those contained in North Carolina General Statute Chapter 35A to determine competency? In addition, there were lingering questions about the interplay between G.S. 7B-1101.1 and G.S. 1A-1, Rule 17, which was the traditional civil procedure rule for appointment of a guardian in incompetency cases. With Rule 17, the guardian did more than just assist the attorney, they substituted as the party. Did G.S. 7B-1101.1 create a situation where the guardian was substituting for the party?
    The Court of Appeals in its December 18, 2012 decision in In re P.D.R. has attempted to provide some clarity to some of these issues. For the most part, it has succeeded in providing some procedural and substantive guidance. Most notable from its holding is the admonition that a trial court, in conducting its initial hearing regarding the need for the appointment of a guardian, must now not only make a determination as to whether a guardian is reasonably necessary but must also determine whether the appointment is one of assistance or substitution. In the event of the former, the language of G.S. 7B-1101.1 governs and in consequence, the parent continues to maintain autonomy with regard to the scope and direction of the parent's representation. As the court of appeals has stated it, the parent suffers not from incompetence but from ". . . diminished capacity. . [and] may have some limitations that impair their ability to function." This is not so with regard to the later option where a court making a determination that an appointment is of substitution effectively strips the parent of their autonomy in the legal action. Appointments of substitution, according to the court of appeals, are governed by G.S. 1A-1, Rule 17. As such, a substitutive appointment is informed by the premise that an incompetent person does not have the capacity to make any decision with regard to the scope or direction of a legal proceeding. Accordingly, the party must be replaced by the guardian who then steps in to make necessary decisions on behalf of the party.
     What this practically means now is that district court trial judges will have a little more work to do when confronted with parents who present with mental illness and impairment in its many forms. Moreover, guardians of substitution will be required to be at every hearing in the same way that a party would be necessary to enable to trial court to act in accordance with due process.Unanswered are those questions about where the frontier exists between a person who suffers from diminished capacity and the more significant and debilitating "incompetence." Those who deal with those issues in Clerk of Court special proceedings are well aware that such issues frequently require the consultation of multiple disciplines in order to gain any degree of understanding about the magnitude of a person's mental impairment.
      It remains to be seen how deeply the district courts in North Carolina will go to satisfy the requirements of the North Carolina Court of Appeals through its decision in In re P.D.R. With dockets bursting at the seams and court time at a premium, it appears likely that patience will likely be a dear commodity among the trial judges. While this is no attempt at clairvoyance, it would be a good guess that the next appeal in this genre will ask the question as to what depth a trial court must proceed to satisfy its requirements under either G.S. 7B-1101.1 or 1A-1, Rule 17.
     

N.C. Court of Appeals Affirms Affidavits of Paternity as Basis for Defeating Termination Claim

  Under 7B-1111(5), the Respondent Father of a child could have his parental rights terminated if it could be shown that (a) he failed to establish paternity judicially or by affidavit; (b) he failed to legitimate the child by filing a civil complaint or petition; (c) he failed to legitimate the child by marriage to the child's mother; and (d) he failed to provide substantial financial support or consistent care with respect to the juvenile and the juvenile's mother. N.C. Gen Stat. 7B-1111(5). To successfully terminate parental rights under this statute, the petitioner or movant would have to establish that all the negatives referenced in the statute were true (despite the disjunctive "or" which connected each clause of the statute suggesting that the burden of proof was to establish that only one of the negatives happened).See Matter of Harris, 87 N.C,. App. 179, 360 S.E.2d 485 (1987).
   One of the sticking points has always been establishing that the father had not legitimated a child in light of affidavits of paternity that might have been signed seeming to do just this. All along there has been some concern (from some quarters, any way) about the legitimacy of establishing paternity by affidavits (as opposed to filing a civil complaint or petition). The Court of Appeals first encountered this problem in In re A.R.H.B.,, a case in which the Court affirmed the trial court's order terminating a father's parental rights for failure to legitimise the child despite the fact that the father's paternity was established by DSS after the termination action was commenced but before the hearing on the merits. In re A.R.H.B., 186 N.C. App. 211, 217, 651 S.E.2d 247, 253 (2007).
   The Court, in affirming the trial court, seemed to rely on the tardiness and involuntariness of the  action. This same result was reached again in In re S.C.R., 198 N.C. App. 525, 532-533, 679 S.E.2d 905, 909-910 (2009)  when the same facts presented:the father sought to legitimate his child by filing an affidavit of parentage after the termination action was initiated.
   Most recently, the Court of Appeals in In re J.K.C, __N.C. App.__,__S.E.2d__(January 17, 2012) has looked at the same issue again. This time the facts are different. Prior to the termination action being commenced, the Respondent Father's name appeared on the birth certificates of both of his children. The Court acknowledged no evidence had ever been presented that the father had ever married the mother and that the issuance of the birth certificate had to come as a result of the operation of N.C. Gen. Stat. 130A-101( f), providing a basis to assign paternity upon affidavit of both the mother and the father. The Court further found that the trial court hearing the termination action had already judicially determined the fact of the father's paternity by adopting court reports which listed the Respondent of the father of both children. Based on these facts, the Court held that ". . .the practical effect of a birth certificate bearing the respondent's name as father of the child is the creation of a rebuttable presumption that the respondent has in fact established paternity of the child judicially or by affidavit."
   What this appears to mean is that the Court of Appeals true concern about affidavits in the past hasn't been about their efficacy as a means to establish paternity. To the contrary, properly and timely executed affidavits of paternity can serve not only as an appropriate vehicle for establishing paternity but also for defeating a claim to terminate parental rights pursuant to N.C. Gen. Stat. 7B-1111(5). Thus it from now on behoves those who expect to defend parents against termination actions to assure that their clients have properly executed affidavits for any children that they want to claim prior to getting served with a termination action. In short, sign (and swear it out) now, or fore ever hold your peace. . .

North Carolina Addresses the Dilemma of "Legal Orphans"

   Ever since the passage of the Adoptions and Safe Families Act (Pub. L. No. 105-89) by Congress in 1997, the several  states have been under a mandate to achieve permanence for juveniles in foster care at the earliest possible time. To this end, the Act imposes a mandate to initiate termination of parental rights proceedings if a child has been in the custody of a county department of social services 15 of the most recent 22 months, unless the court finds that termination of parental rights is not in the child's best interest or certain other, limited exceptions exist. (See 42 U.S.C 675(5)(E). North Carolina shortens this period to requiring the initiation of termination proceedings where a child has been in custody 12 of the most recent 22 months. (see N.C. Gen. Stat. 7B-907). As a result of this race to permanence, many states have been faced with an unintended result of mandated termination of parental rights cases: the creation of legal orphans when a plan of adoption falls by the wayside following the termination hearing.
    This year the North Carolina General Assembly took a step to correct this condition by enacting N.C. Gen. Stat. 7B-1114. The statute, which provides for the reinstatement of parental rights following a termination of parental rights proceeding, is significantly restricted in application to those circumstances where a child is at least 12 years old or where there are significant circumstances justifying parental right restoration, where the juvenile has no legal parent, is not in an adoptive placement and is not likely to be adopted within a reasonable period of time. In addition, the termination order must have been entered at least three years prior to a motion being filed to restore parental rights unless the court finds or the DSS and GAL agree that the permanent plan is no longer adoption.
   If successful, the movant (either the juvenile, the DSS or the GAL) can initiate proceedings which in the end can lead to the restoration of a legal relationship between former parents and the the ir child. While this is a useful first step, the likelihood that this legislation is going to substantially irradicate the specter of the legal orphan is slim. Termination proceedings, at least when conducted within the confines of an abuse, neglect or dependency case, tend to result when there is significant failure on the part of a parent. Quite frequently this is due to significant substance abuse or mental health problems which are not likely to magically go away, especially when there is no longer an incentive to address such issues when the department of social services ceases to be actively involved in the life of the parent. Thus, the parent whose rights were terminated is likely to still be in the grip of those problems that led to the termination in the first place. The trial court, when confronted with a motion to reinstate parental rights must take into consideration what efforts the parent has made to rehabilitate themself. It also must consider the child's best interest. Taken together, few will be the cases where a parent will have done enough to serve as a permanent caretaker for a child who the law requires be provided safety and permanence.
   And so, while great energy and no doubt, enthusiasm, went into the creation of this legislative effort, the North Carolina legislature has still failed to squarely address the underlying issues that lead to the creation of legal orphans: a failed mental health system which prevents parents from being properly treated for mental health and substance abuse related issues, an over-all erosion of public morality which enables bad behavior by parents to thrive, and the propensity in some judicial districts for there to be a hair trigger, where the first day after twleve months have elapsed is the day when a termination action is being filed.

CLE Opportunity: 2011 Juvenile Law Update (Click on Image)

Using the Contempt Power as Carrot and Stick in Juvenile Court

    Generally speaking, the use of contempt as a mechanism to modify behavior in Juvenile Court is rarely used in abuse, neglect and dependency cases. The reason for this is not hard to figure out considering that Juvenile Courts are statutorily mandated to protect the juvenile in such a way that respects family autonomy. In such a context, it almost appears unseemly to threaten incarceration of a parent when one is trying to preserve family autonomy. But such a view is a particualrly narrow one and doesn't consider the long term implications of drug or alcohol abuse or domestic violence (among the more prevailant problems juvenile court parents face) for family autonomy. If juvenile courts truly wish to nurture families and make them whole once again by reunifying children, they must only do so when it reunification can safely be done. This implies a fundamental change from the ususal business in the household which has historically created an unsafe household. While it certainly is simplistic to say, fundamental change at its core must include abstinence from behavior which is going to continue to cause safety issues for children.
   How is abstinence from problematic behavior to come about, one might reasonable ask, given that in many cases such behavior is longstanding and deeply entrenched? Clearly (and at risk of sounding like Judge Posner) the solution is in part found in increasing the opportunity cost of engaging in such problematic behavior. If there is a clear and present danger of going to jail every time that one uses street drugs, or abuses alcohol, or gets into a knock-down-drag-out with someone else in the household, one would expect that such behavior would be significantly diminished. That is the view of the Food and Drug Administration and the Surgeon General as they up and up the cost of a pack of cigarretes to cost prohibitive levels: certain extreme cost modifies socially unacceptable behavior. If such an approach can effectively reduce the incidence of smoking in the United States, perhaps similar in-roads can be made in the area of alcohol abuse, drug addiction, and domestic violence by employing a similar model in Juvenile Courts.
   But the question must be asked: is there any such worry of certain, prohibitive cost in the typical Juvenile Court, that consequences will immediately accompany unwise action? Sadly, the answer is in the negative. As a consequence, parents of children who are adjudicated in Juvenile Court because of their problematic behavior continue to engage in this problematic behavior because they don't see any reason to stop in the short term and the long term is too far away to give any credible thought to it. It is these same parents, after their children are in DSS custody for twelve months, who are utterly shocked when the court changes the plan from reunification to guardianship or termination of parental rights and adoption.
   "Spare the rod and spoil the child", that's the contemporay American vernacular for Old Testament wisdom regarding proper parenting. Regardless of where one stands on corporal punishment, what everyone can agree upon is that proper childhood development requires some degree of discipline, the discipline being administered lovingly to admonish more than to punish, to redirect behavior more than to condemn it. Why not apply proper parenting technique to parents who have historically demonstrated that they need redirection and a new model for behavior?
   Certainly, jail is not fun. Nor is it cheap. Nor is it the solution every time. But if one knew for a near certainty that one was going to go to jail for every careless, wilful mistep, how likely would it be that contempt would have to be used every time? The contempt power afforded the Juvenile Court pursuant to General Statute 7B-904(e) affords the court with carrot and stick to drive proper parental behavior, to steer parents clear of a path which leads straight to termination and to responsibly work toward the preservation of family autonomy. What's more, this power does not depend on a motion from a party but may be invoked ". . .on the court's own motion."The question is, will the supreme parent exercise itself appropriate parenting technique or will it choose to perpetuate the cycle of neglect, this time on a much higher societal level?