In re J.S.C.: Consent Adjudications Not Subject to Clear, Cogent and Convincing Standard

In an opinion that I am sure surprised many, the North Carolina Court of Appeals recently delineated in the case of

In re J.S.C. ,__N.C.App.__, __S.E.2d__ (COA16-1222 (2 May 2017))

the distinction between the quantum of proof required in a consent

adjudication as opposed to an adjudication by hearing.

The case originated in New Hanover County and involved a child who had suffered significant head trauma abuse and neglect. New Hanover County DSS filed a juvenile petition alleging that the minor child was abused and neglected. On 8 August 2016, both respondents appeared in court and tendered a “Consent Order on Adjudication” which was signed by all parties and their counsel and provided further that

the parties “have stipulated and agreed to the entry of this Order which

provides for the following facts, conclusions of law and order” adjudicating [the minor child] as neglected and abused."

Following Disposition, both the parents appealed, the father later withdrawing his appeal. The mother's surviving appeal referenced one particular error: at no time either in court or through a written order did the trial court establish that the consent's findings were arrived at by "clear, cogent and convincing evidence." In the context of adjudicatory hearings, failure to make such a determination has been fatal. See

In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000); In re D.R.B., 182 N.C. App. 733, 739, 643 S.E.2d 77, 81 (2007). However, as the Court of Appeals has pointed out, a consent adjudication is not an adjudication by merely another name.

As the court pointed out in the text of its opinion, since the consent adjudication did not engage in ". . . an adjudicatory hearing, the court did not receive or weigh evidence, assess the credibility of witnesses, or otherwise engage in the process of fact-finding." Accordingly, ". . . [t]he court thus had no occasion to apply the “clear and convincing evidence” standard of proof or any other standard." N.C. Gen. Stat. § 7B-805 on its face applies only to adjudicatory hearings, not adjudicatory consent hearings. See N.C. Gen. Stat. § 7B-805. With that said, the appellate court declined  to extend  In re Church to find reversible error based on the failure of the consent adjudication order to state the evidentiary standard contained in N.C. Gen. Stat. § 7B-805.

North Carolina Juvenile Justice Reinvestment Act (HB 280): A Missed Opporunity For Substantive Reform of the Juvenile Justice System

North Carolina Supreme Court Chief Justice Mark Martin has recently announced  the Judicial Branch's support of the Juvenile Justice Reinvestment Act, HB280. The Bill seeks reform the North Carolina justice system's response to children and teenagers under the age of 18, most notably by prosecuting 16- and 17-year-olds non-violent offenders in juvenile court rather than in adult criminal court. According to statistics from the Bill's supporters , 96.7% of all 16-17 year old offenders charged with misdemeanors and non-violent felonies. With that in mind, Martin made the additional claim that if passed, HB280  will help "strengthen families and [will] likely to result in lower recidivism, less crime, and increased safety," as well as ". . . economic benefits for the state of North Carolina." Examining the text of the proposed legislation, it is immediately clear how the State of North Carolina will save money by diverting juvenile nonviolent offenders from the well-worn path that inevitably leads to prison. With fewer juveniles in this stream of dismal commerce, the numbers incarcerated will inevitably go down, translating to cost savings both in the short and long run. However, one is hard-pressed to find a basis for the other lofty claims made by Justice Martin. The Bill does nothing on its face to enhance or additionally fund existing programs designed to provide treatment to 16 and 17 year olds. Thus, the shop-worn dispositional remedies of community based punishment, wilderness camps, diversion to DSS custody and for the worst offenders, commitment to "youth development centers" remain the sole basis to "strengthen families" and "reduce recidivism". Anyone who works in the North Carolina Juvenile Justice System knows how challenging it is to make effective use of the existing dispositional alternatives provided by the Juvenile Code. Juvenile offenders who have reached 16 and 17 years of age in many cases have already been in the system for several years. These juveniles are, in many cases, jaded and un-amendable to or unwilling to benefit from therapeutic intervention. Moreover, these juveniles are also well aware that juvenile court imposes a relatively low opportunity cost upon their libertine and riotous behavior. Thus, the mere threat that at most a juvenile could be held in secure custody for 14 days, or be subject to house arrest, or get sent off to wilderness camp may hardly register as any form of deterrent. If legislators wish to achieve real and meaningful reform of the Juvenile Justice System, they must address two issues that are not at all mentioned in HB 280. First, the deterrence formula that is set forth in North Carolina General Statute 7B-2506 (Dispositional alternatives for delinquent juveniles) and 7B-2508 (Dispositional limits) needs reconsideration. The current Juvenile Code prevents a District Court Judge from imposing the full range of dispositional alternatives upon Level I offenders, the very offenders who most likely can be deterred from future acts of delinquency if they are hit hard with both consequences and therapeutic intervention at the earliest stage of their potential criminal career. Instead, North Carolina saves the more substantive dispositional alternatives--placement in a residential treatment facility, intensive probation, regimented training programs, and up to 14 days of juvenile detention--for Level II and Level III offenders. While this type of sentencing has the merit of being proportional, such a policy goal is hardly beneficial to society when low level dispositional sentencing leads only to acclimatizing the juvenile to the juvenile justice system and retards the effectiveness of any subsequent higher level punishment. Second, greater emphasis needs to be made to afford juvenile offenders increased access to community based mental health services. Too often inadequate funding streams cripple juvenile court counselor's ability to access residential placements and critical mental health treatment. As a result, even Level II and III juvenile offenders who could benefit from residential treatment or enhanced mental health services are not able to gain access because there aren't enough beds available at a residential treatment facility. Where access to a treatment facility is available, such a resource tends to be reserved for the worst offenders because financial resources are scarce. This very phenomena has led in years past to increased numbers of older juvenile offenders being diverted to DSS custody, the perception being that social services had greater resources available and could more adequately provide treatment. The problem with such an idea is that, even if it were once true that the county DSS had greater resources, those days are long gone with now record numbers of children in foster care and county social services budgets stretched to their limits. While no one denies that financial responsibility is a good thing in government, that fact remains that making public policy decisions can not be viewed exclusively through the lens of the accountant. As in business, sometimes you have to spend money if you are going to make money. If North Carolina is truly going to strengthen families and reduce recidivism among 16 and 17 year old juvenile delinquents, it needs to make a sizeable financial investment aimed at developing solutions that will deter delinquency, get at the root cause of the delinquency, and provide a basis for reform and rehabilitate the juvenile offender so that the likelihood of re-offense is diminished. House Bill 280, with its exclusive emphasis on saving money by narrowing the definition of who can go to prison, fails significantly in this regard.

Professor Jordan Peterson contra Linfield College: Student Free Speech Rights in the Academic Setting

While the culture war headlines have focused on Ann Coulter and her headaches with the University of California-Berkley, a more significant development has erupted to the north on the campus of Linfield College, a small private liberal arts college in McMinnville, Oregon. Jordan Peterson, a University of Toronto professor of Psychology,  was recently disinvited from a previously arranged speaking arrangement by Linfield College Administration and the Student Government Association. Jordan has gained notoriety of late due to his opposition to the Canadian Governments Bill C-16 which proposes to amend the Canadian Criminal Code to extend the protection against "hate propaganda" to gender identity or expression, allowing the prosecution to set out evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression. In its dis-invitation, the Linfield Administration expressed concern that Jordan was fostering "intimidation" and the "threat of force" with his presence on campus, citing a tweet made by Jordan that he would be soon invading "safe spaces" on the campus. The event took place, nevertheless, at an off-campus venue, to great fanfare (.https://www.youtube.com/watch?v=gnQw01x6hs0) in the McMinnville Community.


Such issues as have dogged Coulter and Jordan raise questions about a student's right to hear controversial speakers or to otherwise engage in dialogue on subjects of controversy in an academic setting. The watershed case in this area of the law remains Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In that case, which involved symbolic speech where students sought to wear armbands in opposition to the Vietnam War, the Supreme Court held for the first time that the First Amendment definitively applied to the public school setting. As such, public schools that sought to limit constitutionally protected free speech would have to demonstrate compelling reasons that the schools restriction of student speech was caused by something more than a mere desire to "avoid the discomfort and unpleasantness that always accompany[ies] an unpopular viewpoint." To meet such a burden, the public school would have to demonstrate that the speech, if allowed to proceed unfettered would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."


Applied to the primary and secondary school setting, the courts have upheld a variety of restrictions that impose time, place and manner limitations on student expression where it could be shown that the speech activity materially would disrupt the functioning of or the safety of students within the school. See e.g., Taylor v. Roswell Indep. Sch. Dist, 713 F.3d 25 (10th Cir. N.M. 2013) Students' free speech challenges denied because the speech caused substantial disruption); Wiemerslage v. Maine Tp. High School Dist. 207, 29 F.3d 1149 (7th Cir. 1994) (Speech restrictions on student expression upheld where concerns about safety or property damage). However, such restrictions cannot normally be premised on the potential reaction of others to a planned free speech expression. See Zamecnik v. Indian Prairie School Dist. #204, 636 F.3d 874 (7th Cir. Ill. 2011) (restriction on student from wearing "Be Happy, Not Gay" t-shirt held improper absent evidence that attire would  provoke a substantial disruption at the school).


To date, the Supreme Court has not extended its student speech holdings to the college campus. A recent 9th Circuit case has found first amendment claims in a case involving California State-Fresno, which could give rise to a claim of a First Amendment relation claim. See O'Brien v. Welty, 818 F.3d 920 (9th Cir. Cal. 2016); See also Ariz. Students' Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 869 (9th Cir. Ariz. 2016) Moreover, it is important to note that private academic institutions are immune to First Amendment restrictions on censorship and may limit speech as the institution sees fit. This would seemingly be of significant importance when evaluating the free speech restrictions imposed by a private college campus such as Linfield College.


However, the analysis is not that simple.


Given the proclivity of many academic institutions to seek funding wherever they can get it, hardly any institution is completely financially independent of the state or federal government, particularly when it comes to the funding of student aid. As has been noted previously in this blog, the Obama Administration, using federal funding as a pretext, has sought to extend Title IX, the law setting forth gender equity requirements upon  schools receiving federal funding, to transgender students in such schools. If Title IX applies to schools banning gender discrimination on the basis of federal funding, then surely the First Amendment would apply to private schools that similarly receive federal funding. Linfield is such an institution in as much as it incorporates federally issued student loans as part of its overall financial aid commitment to students who attend Linfield College.


By deliberately denying student right of expression, either directly, or, as in the Linfield College case, indirectly by disinviting a speaker whose opinions might offend persons at the college or in the college community, private institutions of higher learning such as Linfield College do a disservice to their own core mission of fostering intellectual discourse. Less significantly but of importance is the additional concern that such censorship of free speech also runs the significant risk of inviting costly litigation that any college would be wise to avoid.

Juvenile Court, Parental Fitness, and Conferral of Custody to Third Parties: Why Parents May be Found Unfit at Adjudication

Before a child can be placed in the custody of a third-party non-parent, both North Carolina General Statute Chapter 7B and Chapter 50 require a finding of parental unfitness or a finding that a parent's actions have been inconsistent with their constitutionally guaranteed status as a parent. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972); Price v. Howard, 346 N.C. 68 (N.C. 1997). In the recent unpublished case of In re C.P.,__ N.C.App.__,
__S.E.2d__ (N.C. App. March 7, 2017), the Court of Appeals confronted this very issue where a trial court awarded custody of a minor in a juvenile case to a third party relative.


In its opinion affirming the trial court's order, the appellate court noted the trial court's findings that the mother had made some significant, if late breaking progress in her case correcting issues that led to the involvement of the Mecklenburg County Department of Youth and Family Services. Nevertheless, despite these findings, the trial  court concluded that the best interest of the juvenile would be served by conferral of custody upon a third party relative. Curiously, the Respondent Mother, whose custodial rights were further compromised  by conferral of custody to this third party, made no objection to the fact that the trial court failed to make an affirmative finding of unfitness or behavior inconsistent with the parent's protected status.  The Court of Appeals surely noted this and when the Respondent Mother raised this issue for the first time on appeal, the reviewing panel refused to consider the argument, noting merely that a parent who failed to object to a trial court's failure to make a determination of his or her constitutionally protected status waives that right if the parent does not raise the issue before the trial court. See In re T.P., 217 N.C. App.181, 186, 718 S.E.2d 716, 719 (2011).

But the fact remains that the trial court may not have had to make such a finding even if the issue had been raised.

Unlike in a North Carolina Chapter 50 case, a Chapter 7B case requires an adjudication of a child as being either abused, neglected, or dependent. While certainly an argument exists that the dependency of a child may have little to nothing to do with a culpable parent, the same cannot be said for neglect or abuse which at their heart require either tortious or criminal conduct (in the case of abuse) or conduct which either actively hostile to a child's well-being (i.e. failure to provide adequate case, supervision, or discipline) or passively so (i.e. creating an injurious environment). In either case, depending upon the parent's level of culpability, an adjudication or either abuse or neglect, could it would seem, amount to per se unfitness in the case of abuse or per se inconsistent behavior in the case of neglect.

Protection of the family unit is an absolute right guaranteed by the due process and equal protection clauses, a protection which will remain undisturbed "absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children[.]" Petersen v. Rogers, 37 N.C. 397, 445 S.E.2d 901 (1994).  "Th[is] protected liberty interest complements the responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child." Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003).  However, this presumption is erased where a parent "fails to shoulder the responsibilities that are attendant to rearing a child." Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997). 

As the Supreme Court noted in Owenby, a finding under any of the provisions in section 7B-1111 will result in a parent "forfeit[ing] his or her constitutionally protected status." Owenby, 357 N.C. at 145, 529 S.E.2d at 267. When the protection of the parental presumption is lost, the trial court may then ask the lower threshold question of what is the "best interest of the child." Id. at 146, 579 S.E.2d at 267. A court making a finding that abuse or neglect has transpired affecting a child as it is defined by North Carolina General Statute 7B-101, invokes the  same definitions that inform the grounds for termination found at North Carolina 7B-1001, the same grounds the North Carolina Supreme Court has clearly held lead to a forfeiture of parental rights.

With all the above having been said, consider this: the legislature has recently provided an immediate ability to cease reunification efforts following adjudication pursuant to North Carolina General Statute 7B-901 (e.g., sexual abuse, chronic physical or emotional abuse, torture, abandonment, chronic or toxic exposure to alcohol or controlled substances). Given the holding of Owenby and these new statutes which deeply impact a parent's ability to work a DSS case plan or take make any effort to reunify with their child, a strong case exists to suggest that a judicial finding that 7B-901 factors of abuse or neglect exist in a case is tantamount to a finding of parental unfitness or parental actions inconsistent with  constitutionally protected parental status. Thus, the C.P. trial court's failure to find unfitness may have been fatal if the issue had been raised by the parent on the trial level, it may not always be so in cases where the neglect or abuse is of a more elevated and profound character.  

N.C. Senate Bill 594: Social Service Delivery Reform at Devasting Cost to County Authority and Budgets

The newly introduced Family/ Child Protection and Accountability Act, Senate Bill 594, purports to bring sweeping reform to the North Carolina child welfare system. Citing North Carolina’s dismal performance in both state and federal audits, the bill seeks to reorganize county departments of social services by regionalizing the delivery of services and placing direction and authority over social services delivery in the hands of the State of North Carolina.  Introduced on April 4, 2017, the bill already has its advocates. Most notably, Michelle Hughes of the N.C. Child advocacy organization, claims among other things that North Carolina’s child welfare system is failing and that the proposed legislation will lead to “modernized case management”; provide “real-time data about children in foster care” and reduce social worker caseloads.  

The reality is somewhat different from what the bill’s sponsors and Ms. Hughes portray.

First, it should be noted that regionalization is one of the failed parlor tricks of the North Carolina General assembly, demonstrated most notably by the State’s regionalization of the mental health system in the past decade.  Starting initially in 2001 with the separation of mental health management from mental health service provision, the State later embraced the consolidation of metal health management into regional Local Mental Health Entities (LME’s) through the use of the Medicaid 1915 (b)(c) Waiver Program. The results of this consolidation were devastating to many counties within the State where service provision diminished, the spectrum of services available to mental health clients diminished, and the overall quality of services being provided diminished.

Second, the current legislation, embracing E.F. Schumaker’s “small is beautiful” mantra, regionalizes by consolidating 100 current county based social service agencies into 30 regional agencies. Considering that most social services spending in counties has millions of dollars of impact, taking away this influx of cash from the economies of 2/3 of the counties surely will do much to stunt economic growth at a time when the economy is just starting once again to fill county coffers.

Third, while Senate Bill 594 gives lip service to local service provision and preserving existing judicial districts where legal action is necessary, the bill is sparse when it comes to the details. Exactly how does a regional entity provide localized services to populations who frequently don’t have basic transportation?  This question remains unanswered as does the question of how a regional agency can effectively carry out its necessary child welfare, child support and adult protective services legal functions when its territory takes  in multiple judicial districts.

Most problematic of all is Senate Bill 594’s seeming inability to recognize the root of the problem of social services delivery in North Carolina. As any educator knows, a student’s academic failure cannot necessary be solved by merely blaming the student. Certainly some of the blame does accrue to the student. However, questions must also be asked about the standards used to measure the student’s performance as well as the methodology used by the instructor to teach the student.

Senate Bill 594 dispenses with such inquiries and assumes without argument,that the problem must be with the counties. But isn’t the State of North Carolina somewhat to blame as well? And could it be possible that the federal audit failure was the result of an instrument that was designed to lead to failure?

Such questions must be asked before the legislature rushes headlong to pass a measure which will divest the counties of their statutory authority over social services delivery, and takes away a major source of their income.

Endrew F. v. Douglas County School District RE-1: Supreme Court Rejects 10th Circuit's More Than De Minimis IEP Benefits Interpretation

Whether a child has been integrated fully into a classroom setting or not, the Supreme Court has recently determined that a child under an Individualized Education Plan (IEP) required under the Individuals with Disabilities Education Act of 1990 (IDEA) must receive a education that is tailored to a child’s unique needs and seeks to enable the child to make educational progress appropriate in light of the child’s particular circumstances. The Court's opinion in Endrew F. v. Douglas County School District RE-1, 580 U.S. __ (2017), clarifies  an earlier decision by the High Court in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley,  458 U. S. 176 (1982), held that an IEP need only be "reasonably calculated to enable the child to receive educational benefits." This Rowley standard lent itself to a great deal of uncertainty as evidenced by the earlier decision, where the 10th Circuits held that the Rowley standard, when applied to a child not integrated fully in a classroom, could be satisfied by a demonstration of merely more than de minimis educational progress. See Endrew F. v. Douglas County School District RE-1, 798 F. 3d 1329, 1336 (CA10 2015). Vacating and remanding the 10th Circuit's decision, the Supreme Court emphasized that while the IDEA cannot promise any particular educational outcome, it must nevertheless enable the child to achieve a higher educational outcome that is appropriate to the child's particular life circumstances. Concretely, this means that a disabled child under an IEP who is integrated in a classroom should be equipped to progress through the curriculum just like other children in the classroom. For a child who is not able to be integrated into the classroom, the child's IEP need not aim for grade-level advancement but must nonetheless provide an  educational program must "appropriately ambitious in light of [the child's] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."

In re J.T: Court Reports Alone Are Not Substantive Evidence

If it has been said before, it has been said over a two or more times by the North Carolina Court of Appeals: DSS and GAL court reports can do a lot of things but without more, they cannot be the principle basis by which a court acts, whether it is conducting an adjudication, a disposition, a review or permanency planning hearing. Back in 2004, the Court of Appeals reviewed a disastrous case, In re D.L., which in principal consisted of a district court judge engaging in a protracted argument with a Respondent Mother In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004).


As arguments with judges typically do, this one ended badly for the respondent: the judge ended the hearing by receiving the DSS report into evidence and then proceeded to enter an order, without affording the DSS to supplement the report with additional testimony. The Court of Appeals reversed, noting that the trial court's findings of fact were based only on court reports, prior orders and the argument of counsel, none of which qualified standing alone as competent substantive evidence. A largely indistinguishable situation again resulted in the reversal in 2010 with the case of  In re D.Y., 202 N.C. App. 140, 688 S.E.2d 91 (2010).


The most recent incarnation of these facts has arisen out of Orange County (In re. J.T. COA 16-774) (February 21, 2017) where, as before, no oral testimony was received, not even a social worker to take the stand and adopt the DSS report into testimony, nor stipulations of all the parties that might have provided a basis for the court to receive the report as substantive evidence. In addition, the district court, which sought to terminate reunification efforts, failed to follow the statutory requirements found at N.C. Gen. Stat. §§ 7B-906.1 and 906.2 (2015) cease such reunification efforts. As a result, the district court's order was vacated and remanded.


The moral of the story remains the same: in every hearing where all parties do not stipulate to set and necessary facts, there must be oral testimony to support the court's adoption of particular facts (which coincidentally happen to appear in a DSS and/or GAL court report). This standard is satisfied even when a competent witness (i.e. social worker or GAL volunteer) takes the stand, and merely adopts the contents of their court report in full into their testimony. To do otherwise is to court reversal or in the alternative, the Court of Appeals vacating the order of the district court and remanding the same.