The 14th Amendment Equal Protection Implications of Social Services Conflicts of Interest Policy

Conflicts of interests often arise within the context of a county social services work investigating reports of abuse, neglect or dependency. Particularly in smaller communities or rural counties, it is not uncommon for a county department of social services to receive a report concerning a social services employee’s relatives or associates. More rarely, these reports involve social services employees. In such case, the integrity of an assessment or investigation will rightly be called into question if arrangements are not made to conflict the case out, thereby assuring that the assessment or investigation is impartial and not the product of favoritism toward the social services employee or their family.

NC Administrative Codes 10A NCAC 70A .0103 and 10A NCAC 70E .1105 address conflicts of interests that occur with social services agencies in the State, requiring such agencies  to “. . .refer reports of abuse, neglect, and/or dependency to another county child welfare agency when there is a [conflict of interest]. ” The following relationships can create a conflict of interest:

a. Agency (county child welfare agencies) employees,

b. An agency operated daycare facility (null after January 1, 2016),

c. A caretaker in a sole-source contract group home,

d. County Commissioner,

e. County Manager,

f. Foster parent supervised by the county,

g. Governance structure,

h. Members of the board of directors,

i. Member of the Board of Social Services, or

j. Relatives of agency employees (which includes the  great-great aunt, nephew, niece, first cousin, stepparent, stepbrother, stepsister and the spouse of each of these relatives).

Other occasions in which a conflict of interest might arise is when a report involves  (1) a child’s parent/caretaker who is an incompetent adult and who is a ward of that child welfare agency; (2) a minor in foster care who is also a parent/caretaker; or (3) when in the professional judgment of the county agency director, the agency would be perceived as having a conflict of interest. See 10A NCAC 70A .0103.

Once an agency determines a conflict of interest exists, the agency is required to “. . .immediately request assistance from a partner county child welfare agency that would address the conflict of interest]  or reduce the perception of a conflict of interest.” North Carolina Division of Social Services, Family Services Manual, Volume I: Children’s Services, Chapter VIII.1416: Child Protective Services (2016). The partner county, once confirming that a conflict of interest does exist, then becomes responsible for the case in its entirety from that point on, from conducting the assessment or investigation, to sending notices, to filing a petition and seeking non-secure if imminent risk is presented to a child subject to an assessment or investigation. North Carolina Division of Social Services, Family Services Manual, Volume I: Children’s Services, Chapter VIII.1416. III(B)(2) (2016).

At this point, one may be asking why all this is important.

The simple answer is that in child welfare cases, the integrity of child welfare investigations have 14^th Amendment Equal Protection implications that can be very real for children, let alone the parents of children who find themselves in Juvenile Court.

To illustrate this claim, it will help to use a concrete example.  Suppose a report is received regarding an employee of social services and that report was not conflicted out. Suppose further that the investigation was undertaken, the received report was substantiated, and a juvenile petition was filed. While certainly it might appear that the agency treated the report just like any other report received, a healthy skepticism is in order which should give rise to few questions: How does one know if the allegations in the petition weren’t watered down to favor the employee?  Moreover, assuming the matter makes its way past adjudication, how does one know that the recommendations made at Disposition aren’t going to be minimized so that the employee can easily sail through the court process and end the oversight of the county social services agency? The fact is that one can never know.  And if a “soft touch” (which may simply be unintentional and even unconsciously done) is being afforded a social services employee as a result of their relationship with persons at the agency, how does this square with notions that all persons are afforded the EQUAL protection of the law? While this has implications for parental rights, it is most important to focus on the implications for the child who is the subject of the report and the Juvenile Petition: is this child being adequately and appropriately protected when compared to the child’s peers?  The answer in all likelihood is that equal protection is not being afforded to the child which is a violation of the child’s constitutional rights.

It is important to note at this juncture that the conflict of interest protection afforded by the North Carolina Administrative Code is presently being eroded by arguments which would extend the holding of In re A.P., __N.C.App.__,__S.E.2d__(2017)  to conflict of interest cases (and for that see the several references to that case in this blog). As a result, counties are being asked by the State, for the sake of obtaining subject matter jurisdiction over an abused, neglected, or dependent child, to actively take a role in filing petitions in cases in which there has previously been determined to be a conflict. The State's justification is always the same:  that case law trumps policy, which surely it does in most contexts. However, counties are being asked to violate the very regulations that the State has set in place to assure that counties aren't handling cases where there is a conflict. One should reasonably ask, should the State setting policy which it expects county social services agencies to violate? Moreover, one should question the State's justifications for counties getting involved with their conflict cases. While case law may trump regulations, can it be equally said that case law trumps the 14^th Amendment Equal Protection rights of a child?


I think the answer to this is clearly in the negative (and I am sure that a cartload of plaintiff’s lawyers who have been itching to prosecute a §1983 claim would agree).

The Debate Over In re A.P. Continues Over Whether the Holding Applies to Conflict of Interest Cases

The battle of the interpretation of In re A.P. (see In re A.P.: A Challenge to DSS Standing to File Juvenile Petitions Where Neither Parents or Child in County But Not in Conflict of Interest Cases posted here 6/20/17)   continues on and with it, the mind numbing task of determining whether a county has standing to file a petition with regard to an abused, neglected, and/or dependent child, particularly in the case where a conflict of interest exists in the originating county.

In the past few months, there has been an abundance of opinion offered on the subject. One continuing feature of the resulting discussion has been this:

The people arguing the loudest about whether a county does or does not have standing appear to have not read the actual text of the decision very closely.

So what does In re A.P. actually say about whether a county taking a conflict of interest case for another county has subject matter jurisdiction to file a petition for the conflict of interest county?

The answer is loudly, and unequivocally . . .NOTHING.

In re A.P. did not involve a conflict of interest case. The text of the holding in In re A.P. does not mention conflicts of interest cases because that fact pattern was not before it. Notwithstanding this, there are a number of individuals out there that are positively convinced that the case does cover conflicts of interests; They would bet the farm. Moreover, their confidence takes on a sort of misplaced arrogance when you talk to them, with a didactic tone that would not be out of place in an 8^th grade English classroom.

Unfortunately, these voices, earnest as they might be, are wrong.

(Or at least until the Court of Appeals says otherwise).

Here’s why:

At its heart, In re A.P. stands for the proposition that a county only has subject matter jurisdiction to file a juvenile petition where either a child is found or where the juvenile resides. To reach this conclusion, the Court of Appeals make reference to N.C. General Statute 7B-400; 7B-401.1(a); N.C. Gen. Stat. 153A-257(a)(3); and definition of director found at N.C. General Statute 7B-101(10). A director is the individual who oversees the county social of services in the county where the juvenile is found or where the juvenile resides. A juvenile “resides” wherever the legal residence of the parent or relative with whom the child resides, or in the alternative, where the child has the same residence as that with whom the child resides, regardless of the affinity biologically or otherwise with the child. See N.C. Gen. Stat. 153A-257(a)(3).   In a non-conflict situation, only a director (or the director’s representative) in the county where the juvenile is found or where the juvenile resides has standing to file a juvenile petition. See N.C. Gen. Stat. 7B-101(10).  And it is important to note that the text of N.C. General Statute 7B-400 doesn’t use the word county, but uses the term district. So when interpreting the requirement of In re A.P. to file where the child is found or resides, it is important not to make the mistake of looking to the county but to the wider district which can involve more than one county. See N.C. Gen. Stat. 7B-400(a).

So far so good.

But when there is a conflict of interest, the definition of director changes and with it the breadth of standing to file a petition. Not only is the director the individual who oversees the county social of services in the county where the juvenile is found or where the juvenile resides but the director is also the director in the assessing county handling the case due to a conflict of interest. See N.C. Gen. Stat. 7B-400(b). Don’t believe it? Then look at the words of the text in In re A.P.:

Article 4 of the North Carolina Juvenile Code sets forth the requirements for the venue and proper parties of petitions. . .”

The Court of Appeals in In re A.P. then goes on to cite N.C. Gen Stat. 7B-400(a) and 7B-401.1.

So yes, a venue statute not only govern WHERE to file but also WHO can file. Counterintuitive? Yes. But that is the textual holding of decision.

So subject matter jurisdiction in a conflict of interest case is obtained by a director (or director’s representative) or the conflict of interest director (or the conflict of interest director’s representative) filing a juvenile petition in the district where the juvenile is found or resides.

[ENTER A CRITIC, CENTER STAGE LEFT]

“But isn’t that mere conflation,” says one person out there, and therefore can’t we ignore it?” Well, I wouldn’t think it a great strategy to challenge the judges of the court of appeals of being flip, especially when each decision is thoroughly discussed in conference before initial publication and again prior to the mandate. I think it fairly safe to say that when the panel in In re A.P. references all of Article 4 as a means of determining both venue and the proper parties to an action, it means all of Article 4.  

So what is a county in a conflict of interest case to do? If there is a genuine issue of a child not residing in the district where the child is found or resides, or where a director other than the original director or a conflict of interest director filed the petition, then the case must be dismissed: there is no subject matter jurisdiction. In this case, a county DSS could dismiss the petition, make arrangements to move the child so that the child is actually found in the District in question, and refile.

Otherwise, plow ahead. If your trial court dismisses the case for lack of subject matter, appeal it and ask for a stay.  If not, there is certainly the issue that the case may be appealed later (as the issue of subject matter can be raised at any time) and this may regrettably delay permanence for the child who is the subject of the petition.

Regardless, this issue must be resolved one way or another and the only way that will happen is for either the legislature to act to clarify the holding of In re A.P. or for the Court of Appeals to do so when the matter has been properly appealed. The latter requires a bit of courage and resolve that has thus far not shown itself.

Any takers?

The County Social Services Agency's Burden Under ICWA and N.C. Chapter 7B to Identify Indian Children.

What burden falls upon a county DSS to ascertain whether a child is an “Indian Child” as defined by the Indian Child Welfare Act?

Unfortunately, there is no overt guidance to be found in the Juvenile Code.

The closest to such guidance can be found at North Carolina General Statute 7B-200 (jurisdiction) which provides subject matter jurisdiction to the District Court “over any case involving a juvenile who is alleged to be abused, neglected, or dependent” and  “[p]roceedings to terminate parental rights.” N.C. Gen. Stat. 7B-200. This jurisdiction is subject to one essential caveat: that state conferred jurisdiction not be pre-empted by federal law, specially the Indian Child Welfare Act (ICWA) which governs Indian children, as a specific subset of juveniles who might otherwise fall within the jurisdiction of a North Carolina District Court.

According to ICWA, an Indian Child is any “unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in and Indian tribe and is the biological child of a member of an Indian tribe.”  See 25 U.S.C. §1903(4) (2006). Furthermore, an Indian tribe is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services  provided to Indians by the Secretary (of the Interior) because of their status as Indians, including any Alaskan Native village.”  See 25 U.S.C. §1903(8) (2006).

So it seems that at a minimum a social worker for a county department of social services should ask in the course of an assessment or investigation whether a child is (a) a member of federally recognized Indian tribe or (2) whether the child is eligible for membership in an Indian tribe and whether a parent is a member of an Indian tribe.

With that question answered, three points of observation should be made at this juncture. First, it very often will be the case that when a social worker asks a parent the afore-mentioned question , all manner of lore is coughed up about genealogical connections to tribes of every description. Very often the dialogue will resemble something like the following:

Q:           “Is Johnny (Susanne, Cheyenne, April, Bill, etc.) a member of federally recognized Indian  tribe or is the child is eligible for membership in an Indian tribe? Are you, the parent of    Johnny (Susanne, Cheyenne, April, Bill, etc. ) a member of an Indian tribe?”

A.            “Well, my uncle was part Cheyenne Indian and my cousin was half Blackfoot.”

Obviously, such answers not only do not answer the question but they also do not convey the necessary information to lead to a mad dash to contact an identified tribe. The social worker should make sure that the answer is properly answered and only the proper answer is recorded in dictation and reported to the court.

Second, if the respondent does answer the afore-mentioned question correctly and affirmatively, verification is warranted by contacting the identified federally recognized tribe as well as independent corroboration. As a recent North Carolina Court of Appeals case, In re L.W.S. has shown, parents are not always good historians and occasionally get the facts wrong. See In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (parent erroneously asserts that birth record identified child as Cherokee when birth records admitted into evidence fail to substantiate claim).

Third, even if a child is likely to be an Indian Child, while ICWA will likely govern the proceeding, the identified tribe has the final say on whether the child is an actual Indian Child and whether it will exercise its right to intervene. See 25 C.F.R. § 23.108(a-b) (2017). Thus, if a positive identification occurs of a suspected Indian Child, the county department of social services has a burden to contact the Indian parents, Indian custodians and the child’s tribe by certified mail. See 25 C.F.R. § 23.11(a) (2011). Only when the tribe gives an answer affirmatively , negatively or (by proxy negatively) by not answering back is the inquiry complete.

As was noted in the case of In re L.W.S., the burden of identifying whether a child is an Indian Child is part of the function of the North Carolina District Court when it factually determines whether subject matter jurisdiction exists. In re L.W.S., __N.C. App.__,__S.E.2d__(September 5, 2017) (footnote 4). The trial court will not be able to discharge its judicial responsibility if it cannot obtain the necessary facts to ascertain and find that subject matter jurisdiction exists and if so, whether that is under N.C. Gen. Chapter 7B or ICWA. While it is true that the burden of proof lies with an individual who seeks to invoke ICWA (see In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007), it nevertheless is the burden of the petitioner to provide the trial court competent factual evidence to establish subject matter jurisdiction.

Thus in summary, to answer the question as to what constitutes the burden of a county department of social services of identifying an Indian Child,  the county department of social services must ask the proper questions under ICWA, must follow up with the identified tribe, and report these facts to the court. Beyond this, the burden lies with other parties or with the trial court.

In re T.P. and N.C. General Statute 7B-401(b): Divestment of Jurisdiction of the Juvenile Court?

Every juvenile case should end this way: after an adjudication and disposition where a child is removed from the home, the parent or parents work diligently to follow the out of home family services case plan developed by the DSS. Conditions in the home are remedied and a trial home placement ensues. The successful trial home placement then leads to conferral of custody upon the parent or parents. The end.

Those in the area of child welfare know this scenario is an all-too rare phenomenon and even when parental custody is restored, the juvenile court is often reluctant to terminate its jurisdiction.

In reality, juvenile courts should consider terminating their jurisdiction more often, at least until there is legislative reform are subsequent litigation on the jurisdiction of juvenile courts. While it certainly remains within the power of the juvenile court in a case where it has returned custody but retained jurisdiction to enforce its prior orders through the contempt power, the reality is that juvenile courts, confronted by bad parental behavior, are likely to do more than merely entertain contempt. More likely than not, juvenile courts in such circumstances are likely to alter previous juvenile orders to change custody, something not permitted by statute or current case law.

North Carolina General Statute 7B-401 (b) states that if a court has (a) retained jurisdiction over a juvenile whose custody was (b) granted to a parent and (c) there are no further scheduled periodic reviews of the placement, then the provisions of Article 8 shall apply to any subsequent report of abuse, neglect, or dependency determined by the director to require court action pursuant to North Carolina General Statute 7B-302. N.C. Gen. Stat. 7B-401(b); In re T.P., __N.C.App.__,__S.E.2d__ (July 5, 2017).

Article 8 governs the procedures relevant to hearing an adjudication of a juvenile petition. Thus, it seems that once all of the requirements of North Carolina General Statute 7B-401(b) are satisfied, a subsequent report of abuse, neglect or dependency triggers the requirement to file a new petition if the court is the exercise its jurisdiction properly. In re T.P., __N.C.App.__,__S.E.2d__ (July 5, 2017).

This is the paradoxical conclusion that is has been the law of the land since 2013, so says the North Carolina Court of Appeals and is now the definitive word since no petition for certiori has been filed with the North Carolina Supreme Court.

I choose to use the word “paradoxical” because it is a settled principle of juvenile law that, unless the juvenile court terminates its jurisdiction on its own or it is terminated by virtue of the child reaching the age of majority, the court’s jurisdiction continues. See N.C. Gen. Stat. 7B-201. To have jurisdiction, according to Black’s Law Dictionary is to the “. . . legal rights by which judges exercise their authority.” Black’s Law Dictionary 766 (5^th ed. 1979). The Juvenile Court’s authority to act includes “. . . any case involving a juvenile who is alleged to be abused, neglected, or dependent” as well as  “. . .jurisdiction over the parent, guardian, custodian or caretaker of a juvenile who has been adjudicated abused, neglected, or dependent” provided they were served a summons, waived service, or automatically became a party pursuant to North Carolina General Statute 7B-401.1 (c) or (d). N.C. Gen. Stat. 7B-200. Once the light switch is turned on, the Juvenile Court seems to continue to have authority until the court either turns off the switch or the age of the child turns the switch off for the court. The holding of In re T.P. states otherwise, requiring that the juvenile court be divested of its ability to take any action or exercise any authority until a new adjudication takes place, making the juvenile twice abused, neglected or dependent.

Perhaps as a justification for the Court’s holding , it might be said that the North Carolina Court of Appeals has imported the statutory due process requirements that relate to juvenile delinquency proceedings and applied them in the context of child welfare. The problem with such a justification is that, while both child welfare and delinquency statutory authority are both contained in Chapter 7B of the General Statutes, for at least one significant reason, such analogization doesn’t work because juvenile courts in juvenile delinquency cases end up with much greater authority than those handling cases involving abuse, neglect or dependency.

Juvenile adjudications, whether those of abuse, neglect, or dependency or delinquency, are status adjudications. Once a child has been deemed to partake of a particular status, that status follows the child until the child’s case is ended by the termination of the court’s jurisdiction. Using the juvenile delinquency statutes as a guide, it is clear that this is so, even if the juvenile continues to incur more charges which lead to additional juvenile delinquency petitions. For evidence of this, see N.C. Gen. Stat. 7B-2510, which provides that even when a juvenile who is on probation violates the terms of the juvenile’s probation, the court has jurisdiction to extend probation, modify the terms of probation, or order a new disposition while at the same having the obligation to adjudicate any new petition of delinquency filed with the trial court. Thus, North Carolina General Statute 7B-401(b), by preventing the trial court from reviewing and modifying a custodial placement or ordering a new disposition, doesn’t even allow the juvenile court authority to act in child welfare cases  to the extent that it could in a delinquency case. As George Orwell might say, all juvenile courts are equal but some juvenile courts are more equal than others.

The limits placed on the authority of the trial court by North Carolina General Statute 7B-401(b) are illogical, inconsistent with existing statutes, and, as the statute has been interpreted by the North Carolina Court of Appeals in In re T.P., contrary to the norms of juvenile practice in North Carolina. It would be this author’s plea that the North Carolina Supreme Court take up the case (perhaps through its own inherent powers to review the constitutionality of statutes) and give careful consideration to invalidating 7B-401(b) or, barring this, that the legislature give this statute more thorough and proper consideration.  

North Carolina's Juvenile Justice Reinvestment Act: Real Juvenile Reform or a $143 million Financial Boondoggle?

Largely attributed to the U.S. Supreme Court’s expansion of Eighth Amendment jurisprudence over the past twenty years, state legislatures have slowly dismantled three decades of laws designed to “get tough” on juvenile offenders. These laws in some cases limited the jurisdiction of the juvenile courts and mandated that courts try juveniles as adults for certain crimes if the juveniles were of a certain age, usually 16 or 17 years of age. This legislative session, the North Carolina General Assembly modified its juvenile transfer and jurisdiction statutes to expand juvenile court jurisdiction and to limit transfers of juveniles to Superior Court. Titled the Juvenile Justice Reinvestment Act and contained in the Legislature’s budget bill (S.L. 2017-57, SB 257), the measure modifies existing juvenile transfer and jurisdiction statutes to limit their impact on juveniles and reduce the likelihood that a juvenile will be tried for alleged crimes in the same way as an adult.

 

This genesis of the Juvenile Justice Reinvestment Act is to be found in the work of the United States Supreme Court, which has over the past several decades significantly eroded the impact of state legislation aimed at criminalizing juvenile offenders.  Most notably,  in Roper v. Simmons, 543 U.S. 551 (2005), the Court struck down state laws that provided for the imposition of capital punishment on juveniles as being contrary to the Eighth Amendment’s prohibition against cruel and unusual punishments.  Nearly a decade later in Graham v. Florida, 560 U.S. 48 (2010) and in Miller v. Alabama, 567 U.S. 460 (2012), the Court again expanded the reach of the Eighth Amendment to ban the imposition of a life sentence without the possibility of parole upon juveniles convicted of serious crimes. In all of these cases, the Supreme Court holdings differentiated between adult and youthful offenders, noting that juveniles were more likely to lack maturity; less likely to have a developed sense of responsibility; were more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; were more likely to have an unformed character; and were more likely to have an occasion for reform. Roper at 570; Graham at 74. As such, juveniles should not be punished in the same way as adults.

Half a decade later, the Juvenile Justice Reinvestment Act has finally been passed in North Carolina. Despite all the celebratory headlines in North Carolina newspapers, the reality at present is that nothing has changed with regard to juvenile jurisdiction or transfer to Superior Court, at least not yet.

At present, N.C. Gen. Stat 7B-2200 permits transfer of the case of a juvenile 13 years or older at the time of an alleged crime by the juvenile if the crime were a felony if committed by an adult and mandated the transfer if the felony were a Class A felony (Murder, Manslaughter). Likewise, N.C. Gen. Stat. 7B-1604(a) afforded juvenile court jurisdiction over a juvenile who has allegedly committed criminal acts only to the extent that the alleged acts were committed on or before the juvenile’s sixteenth birthday. Effective December 1, 2019, where the court obtains jurisdiction over a juvenile alleged to be delinquent who has not reached 18 years of age, the juvenile court will retain jurisdiction under N.C. Gen. Stat. 7B-1604 unless the juvenile has been alleged to have committed a felony. In that case, N.C. Gen. Stat. 7B-2200 permits transfer of the juvenile who is 13-16 to superior court and mandates transfer in the case that the alleged felony is a Class A felony. A new statute, N.C. Gen. Stat. 7B-2200.5 requires transfer of juveniles over the age of 16 to Superior Court if they are alleged to have committed an A-G felony, and permits transfer if the alleged felony is a Class H or I felony. Thus, the reformed statutes essentially maintains the integrity of the existing transfer and jurisdiction statutes while effectively raising the age of their application, making it a greater likelihood that a juvenile will be prosecuted in juvenile court than would have been the case without the legislation.

 

Many questions are now ripe for answering since North Carolina has abandoned its hard line approach to juveniles in favor of one that is, on its face, kinder and gentler. Is raising the age a good idea whose time has come or will it be a costly boondoggle that will increase case-loads in juvenile court and cost the taxpayers money? The verdict on this question is still out. A Legislative Fiscal Study attached to the original Juvenile Justice Investment Act House Bill projected that the impact of the legislation would be approximately $25,307,000 for Fiscal Year 2017-2018, and cost an additional $29,576,319, $44,376,721 and $44,478,339 for Fiscal Years 2019-2020, 2020-2021, and 2021-2022. Gen. Assembly of N.C. Session 2017 Leg. Fiscal Note.

So much for the cost side of things.

But an additional question needs to be asked: now that a juvenile won’t have to face adult charges (a significant deterrent to law enforcement since it will cloud a juvenile’s future) is there now more of an incentive for law enforcement to charge an act of delinquency that might in the end be expunged? And if so, what will these additional charges do to the numbers of juveniles who are expected to enter the juvenile system and how much more cost will it add to the $143 million price tag this legislation is already expected to cost?

Turning from costs, one need also ask about the impact of this legislation on the lives of juveniles. Will the expenditure of $143 million over five years lead to significant reform of juvenile behavior, reduce the incident of juvenile delinquency, and lead to better outcomes for those juveniles adjudicated delinquent? If one assumes that the sole cause of juvenile delinquency and subsequent recidivist behavior is lack of proper psychological treatment and youth services that aren’t delivered because juveniles have been prosecuted as adults, perhaps one could imagine that the legislation will lead to  some positive impact.  

However, the reality is and remains that juvenile offenders mainly become the way they are because of the sociology of their individualized households and extended social groups. Until the environment of home and hearth is better nourished, sustained and supported, until parents and caregivers take a more active and corrective role in instilling proper values, until expectations for a better life are instilled in juveniles who are at risk for offense, the result is likely to be more of the same.

In re A.P.: A Challenge to DSS Standing to File Juvenile Petitions Where Neither Parents or Child in County But Not in Conflict of Interest Cases

The North Carolina Court of Appeals recently reversed an adjudication in Mecklenburg County due to the fact that the Mecklenberg County Department of Social Services did not have standing to file a juvenile petition. In re A.P., __ N.C. App.__,__S.E.2d__(April 18, 2017). In reaching its holding, the Court of Appeals relied primarily on the fact that at the time Mecklenburg County filed its juvenile petition, the child in question neither resided in the county nor was the county of residence of the child’s parents. Id.

 

Given the significant importance the appeals court placed upon the ability of a county social services director’s ability to file a juvenile petitions, the question naturally arises as to what impact this will have when a county has a conflict of interest and where ultimate responsibility to file a petition may reside with a county that has neither the child’s parents in residence nor can claim that the child can be found in the county. The answer, as it turns out, is that the holding of In re A.P. does not apply to conflict of interest cases. But before one can get to this conclusion, a little background is in order.

 

The North Carolina Department of Health and Human Services recently revised its conflict of interest policy in an effort to bring it more in line with current ethical practice. Where a conflict arose under the old policy, for example, where a child welfare investigator in a county department of social services was related to a party who was the subject of a child welfare report, the initial screening, the investigation or assessment of the report, and any subsequent case management would be assigned to a sister county. See 10A NCAC 70A.0103

North Carolina Division of Social Services Family Services Manual. Volume I: Children’s Services Chapter VIII: Child Protective Services. 1410 Conflict of Interest. However, if the family risk situation later rose to the level where a juvenile petition needed to be filed, the petition would fall to the responsibility of the original county, regardless of the fact that a conflict of interest existed. Id. Under the new policy revised December 2016, the filing of any petition or seeking non-secure custody over a child in the original county remains with the county taking on the case due to a conflict of interest. Thus, once a case has been determined to be a conflict of interest for County A, the case is referred to County B which handles the matter to its conclusion.

Standing to file a juvenile petition normally falls to a director of a county where a child is found or where the child’s parents reside. N.C. Gen. Stat. 7B-101(10). Normally this is where In re A.P. would present difficulty for a county handling a conflict of interest case. However, it is vitally important to reference the statute governing venue. In as much as one consults this statute, one finds that standing is also conferred to a director handling a conflict of interest case, who has the ability to file the petition in either the original county where the conflict of interest arose or the county where the director’s agency is found. See N.C. Gen. Stat. 7B-400. Thus, North Carolina General Statute 7B-400 specifically provides both standing to the conflict of interest director of social services as well as venue in either the director’s home county or the county where the parents reside or where the child could be found.

No doubt, some out there will immediately argue that 7B-400 is a venue statute and therefore has nothing to do with standing or subject matter jurisdiction and that In re A.P. applies to all cases, whether there is a conflict of interest of otherwise. Unfortunately, this position is not consistent with the holding of the Court of Appeals in this decision which quotes extensively (but not completely) from 7B-400 to support its over-all position that Mecklenburg County DSS did not have standing to file its petition. To quote the Court of Appeals, "Article 4 of the North Carolina Juvenile Code sets for the requirements for venue and the proper parties of petitions." (emphasis added). If we can rely on the court's opinion regarding the function of Article 4 based on the excerpted section the court relied on in the opinion , then one can safely rely on the whole of Article 4 which defines the proper parties of petitions to include directors of counties handling conflicts of interest.

Admittedly, there is some incongruity between the definition of a county social services director found in North Carolina General Statute 7B-101(10), which does not provide for the contingency of handling a conflict of interest, and 7B-400, which expressly does do so. This incongruency will, hopefully, be addressed by subsequent legislative amendment. However, in the meantime, those counties handling conflict of interest case for a sister county need not fear an absence of standing or venue. The same is appropriately (if not perfectly) provided for by the General Assembly in the existing legislative framework of the Juvenile Code.

In re M.B Part II: Parent Rights and Responsibilities Lost when Third Party Custody or Guardianship Conferral is Permanent Plan?

One of the express goals of the North Carolina Juvenile Code is to seek to safely prevent the need for removal of children from their homes when issues of risk arise within those homes. Sometimes in is not always possible to adequately protect children in their own home due to inadequacies of the home, the social failings of the parents, or both. In such cases, third party caretakers are next enlisted by county departments of social services, at first relatives or persons with kinship, to provide these at-risk children with a safe and appropriate home. When even these avenues fail to provide a safe and appropriate home environment, the children are placed in foster care.

It is a sad but all too true fact that in the majority of cases that are filed in North Carolina Juvenile Court’s, once a child is removed from a home, there is a very small chance that the child will ever be successfully reunited in the home of the parents. Very often, the child will find permanence with relatives or others who have provided long term child placement.

The question arises: if a child is removed from a parents home, if the plan of care changes from reunification with a parent and the permanent plan is custody of guardianship with a relative or court-approved care-taker, what rights do the parents of the child still retain?

North Carolina General Statute 7B-906.1(e)(2)(2015)  seems to offer some guidance on this issue where it provides that:

(e) At any permanency planning hearing where the juvenile is not

placed with a parent, the court shall additionally consider the

following criteria and make written findings regarding those that

are relevant:

. . .

(2) Where the juvenile’s placement with a parent is unlikely

within six months, whether legal guardianship or custody with a

relative or some other suitable person should be established and,

if so, the rights and responsibilities that should remain with the

parents.

This statute was recently construed by the North Carolina Court of Appeals in In re M.B., __N.C.App.__,__S.E.2d__(May 15, 2017) in a case where guardianship had been awarded to a paternal great-grandmother  and the permanent plan was changed from reunification to guardianship. In that case, the court held that, notwithstanding  the language of North Carolina General Statute 7B-906.1(e), there was no statutory obligation on the trial court, apart from the issue of visitation, that required the trial court to specifically enumerate every possible right and responsibility that the parents would retain in light of the court’s award of guardianship. Id.   More surprising still was the additional holding of the court that “. . .. . when a child is placed in the custody or guardianship of another person, the parent’s rights and responsibilities, apart from visitation, are lost if the trial court’s order does not otherwise provide.” Id.

 

This latter interpretation of N.C. Gen. Stat. 7B-906.1(e) by the Court of Appeals is problematic for several reasons. First, the award of custody to a third party such as a county department of social services is available as one of several dispositional options available to the court following adjudication. See N.C. Gen. Stat. 7B-903. Guardianship, on the other hand, can be awarded at any stage of a juvenile proceeding. See N.C. Gen. Stat. 7B-600. Of course, prior to awarding custody or guardianship to a third party, the court must find both that the home of the parent is inadequate to the task of providing safely for the needs of the child, that the juvenile requires additional supervision beyond that provided by the parents and that the same is consistent with the best interests of the juvenile. N.C. Gen. Stat. 7B-600. Guardianship conferral also requires that the court find that the prospective guardian understands their responsibility and that the guardian is both physically and financially able to provide for the needs of the juvenile. N.C. Gen. Stat. 7B-600(c); In re M.B., __ N.C. App. __, 782 S.E.2d 785 (2016).

 

All that being said, it has never been the case that in the absence of a specific judicial determination that the parents would lose all their rights and responsibilities. For example, federal law requires parents to participate in and sign paperwork necessary to effectuate a child’s Individualized Education Plan (IEP) , even when a child is in the custody of a county department of social services and is placed in foster care. See 20 U.S.C.A.§1414(d). Moreover, the Juvenile Code provides a host of other examples where parental rights or responsibilities remain even where a third party such as with the department of social services has custody of a child. See N.C. Gen. Stat. 7B-904(a) (potential obligation for medical, surgical, psychiatric, or psychological treatment costs); N.C. Gen. Stat. 7B-904(d) (potential child support); N.C. Gen. Stat. 7B-1000 (right to seek modification of trial court order); N.C. Gen. Stat. 7B-1001 (right to appeal trial court order).

 

Outside of these considerations, it should be noted that in every case where a third party custody conferral or award of guardianship occurs, the trial court must retain jurisdiction over the case until the child reaches the age of 18. See N.C. Gen. Stat. 7B-201. As such, the parents, as parties to the juvenile action, retain a right to procedural due process and must be sent notice of any subsequent juvenile proceeding regarding the child. Thus, it seems unlikely that there is a legally sufficient basis for the Court of Appeals most recent holding in In re M.B.,that, absent a mandate by the trial court, a parent loses all substantive and procedural rights and responsibilities regarding their child outside of visitation.

 

Admittedly, the Court of Appeal’s holding seems to be confined to custody transfers or conferral of guardianship at or following the initial permanency planning hearing. Thus, the impact of the holding may be mitigated to some extent in that it may not be intended to apply to proceedings prior to the first permanency planning hearing. But while this may mitigate the problematic nature of the holding, it doesn’t make all the problems go away. Perhaps the most glaring problem that remains is the situation where guardianship has been conferred and at a later date the guardian either refuses to perform the duties required under N.C. General Statute 7B-600 to provide for the needs of the child-ward or is unable to do so. Under N.C. General Statute 7B-600, any party may seek a hearing in such circumstances to remove a guardian and make such other orders as are necessary from the protection of the juvenile. See N.C. Gen. Stat. 7B-600. In so doing, the trial court must undertake the analysis provided for by N.C. General Statute 7B-906.1, looking first at whether the child may be safely returned to the home of the parents. Under the most recent holding of In re M.B., the parent’s rights to such due process would be eliminated, absent its preservation by the trial court at the time the guardianship was awarded.

 

The better view (and better holding) would be one that affirms that parental rights remain inchoate in the circumstances where there has been an award of custody or guardianship to a third party. Under such a theory, the rights of the parents, like a junior lien on property subject to a superior lien, would remain in abeyance until such time as the superior custody or guardianship of the third party is eliminated or otherwise modified. Only when the custody of guardianship of a third party is dissolved or otherwise mitigated would the inchoate rights of the parents be able to be actualized. Such a view avoids the draconian consequences that result from the most recent holding of In re M.B.. Moreover, such a theory has greater resonance with both other areas of the Juvenile Code (i.e. N.C. Gen. Stat. 7B-201(b) (termination of court’s jurisdiction revives inchoate rights of parents as they existed prior to juvenile proceeding) other areas of the law such as property law and secured transactions where multiple claims of legal or equitable interest can be recognized and accommodated outside without the need to resort to an “all or nothing (or nearly all or nothing) proposition”.

 

Unfortunately, no judge dissented among the Court of Appeals panel that upheld the trial court’s decision in the most recent decision in re M.B., and thus absent the granting of a writ of certiorari by the North Carolina Supreme Court or the future revision or re-interpretation by the Court of Appeals itself,
the most recent holding in In re M.B. is sure to cause trouble for parents as well as trial judges who aren’t careful in specifically setting down the rights and responsibilities of parents where the court seeks conferral of child custody or guardianship upon third parties.