We're From the Government and We're Here to Help: The AOC and Revisions to the Juvenile Petition Form AOC-J-130

Child Welfare practice in North Carolina is one dependent upon forms, at least in the early stages of any juvenile court proceeding. While not a formal requirement, the North Carolina Administrative Office of the Courts has encouraged the use of its “Juvenile Petition” otherwise known as form AOC-J -130. This form has seen much revision since it was first introduced decades ago and is even now being revised, this time to add an attorney signature line---something that has never appeared on the form in it’s entire multi-decade history.

Legal forms persevere in this day in age because they serve an important purpose: they are a proxy checklist for the pleading requirements that are imposed by North Carolina Chapter 7B as well as the North Carolina Rules of Civil Procedure. However, when it comes to the initial juvenile petition and form AOC J-130, some parts of the form are more important than others.

For instance, the address blocks for the child and parents and the age blocks for child at the top of the form are necessary to properly establish subject matter jurisdiction and appropriate venue. If the child is not actually a child (i.e. above the age of majority) or does not live in or cannot be found in the same county as the petitioning county department of social services, then issues of standing and subject matter jurisdiction will impede the petition and the petition must ultimately be dismissed. See In re A.P., __N.C. App.__ (April 18, 2017). A court’s subject matter jurisdiction can also depend on proper pleading in those blocks containing the allegations of either abuse, neglect or dependency and the verification blocks. (See In re T.R.P., 173 N.C. App. 541 (2005); Matter of Triscari Children, 109 N.C. App. 285 (1993)).

But what about the other blocks on the form?

The North Carolina Court of Appeals has definitely stated that it is necessary to properly check whether the director of a county department of social services is signing the juvenile petition or a designated representative and a false step here has led to the dismissal of a juvenile petition. See In re A.J.H.-R, 184 N.C. App. 177 (2005) (social work supervisor rather director signs petition when checking “director on juvenile petition form).

While this area on the “director”/designated representative” section of the form is an area of notable importance, there are a number of other areas which don’t seem to raise as much concern for the appellate courts. For example, while it prominently commandeers the lower fourth of the juvenile petition’s second page, the “witness” section of the form often goes unfilled and thus far no one has successfully raised issues that a lack of named witnesses deprived a party of notice or deprived the petitioning party of standing.

Neither has there been much concern about the check boxes on the front that summarily allow a party to allege the condition of a child as an abused, neglected or dependent juvenile. However, it is easy to imagine that failure to check these boxes accompanied by a failure to properly plead abuse, neglect or dependency in areas provided lower on the form would lead to trouble.

So the question arises as to the importance of the attorney signature line that has most recently been placed on the form. One line of reasoning states that the requirements of North Carolina Rule of Civil Procedure 11 require the attorney to sign any pleading, motion or other paper submitted to a court. See N.C. Gen Stat. 1A-1, Rule 11.  However, this position ignores the fact that in the area of child welfare, North Carolina General Statutes Chapter 7B specifically authorizes a director or the director’s designated representative to file a juvenile petition without the assistance of an attorney. See N.C. Gen. Stat. 7B-401.1. What’s more, many juvenile petitions in many counties are not reviewed by attorneys as they are filed after-hours and contain information that cannot be ethically certified by the attorney through a signature.

So in effect, the signature line added by the Administrative Office of the Courts is now creating, on the one hand, a plausible scenario for county DSS attorney’s to run afoul of ethical requirements if they sign pleadings that they have not absolutely vetted with social work staff and by reviewing documentation. On the other hand, the AOC has invited a new rash of appeals where a petition is concerned where the DSS attorney fails to sign the pleading, perhaps due to the very fact that the pleading could not be ethically certified under Rule 11.

And so it goes.

As with so many others whose noble acts seemed good at the time, the North Carolina Administrative Office of the Courts is about to learn about the law of unintended consequences, consequences that will probably be detrimental to the integrity of child welfare practice in North Carolina and will in all likelihood delay permanence for dependent children who must wait additional months for unnecessary appeals to pass before they can be legally clear for adoption.

A Parent's Right to Be Present in Juvenile Court? Sometimes But Not Always

A recent case handed down by the North Carolina Court of Appeals addresses a question that frequently arises in juvenile court:

To what extent does a parent have a right to be present in their child’s juvenile welfare proceeding?

Addressing this issue in a February 20, 2018 decision, the court, in the case of In Re S.G.V.S, __N.C. App.__,__S.E.2d (February 20, 2018), held that a parent detained by criminal court and prohibited  from attending a termination of parental rights hearing in which she was a respondent had the right “. . . to be present at the termination and best interests hearing, to assist her counsel with the direct and cross-examination of witnesses, to testify on her own behalf, and to present any other evidence in the adjudication and disposition stages of the hearing on DHHS’ motion to terminate her parental rights.”  In the Matter of S.G.V.S. was a Haywood County termination of parental rights case where the mother’s parental rights were terminated. The respondent mother, while present on the first day of the hearing, was not present when the case was continued for further hearing due to a court date in Buncombe County on criminal trespassing charges. The TPR hearing went on in respondent mother’s absence, despite two motions to continue filed by the respondent mother’s attorney at both the adjudicatory and dispositional stages of the termination proceeding. 

Following the hearing where the mother’s parental rights were terminated, the respondent mother’s attorney filed a Rule 59 motion to re-open the evidence at the TPR hearing. Included in the respondent’s post-judgment motion request for relief was an accompanying statement filed by the respondent mother’s attorney alleging that the mother’s was prevented from attending her child’s hearing by a criminal court judge who required her to remain in court until the respondent mother’s criminal case was reached.

Citing the fact that retaining one’s custody over one’s child is a fundamental liberty interest that requires due process protections, the appeals court vacated remanded the case was particularly concerned about the juvenile court’s denial of the mother’s request to continue the termination hearing or re-open the evidence, which the trial court justified in part by a finding that the respondent mother “chose” to attend criminal court rather than attend the termination hearing.

In its decision reversing and remanding the trial court’s decision to terminate parental rights, the Court of Appeals held that “. . .[t]he trial court’s refusal to continue the hearing to a different day and denial of the Rule 59 motion to allow Respondent to attend and participate results from a misapprehension of the law and is an unreasonable and substantial miscarriage of justice.”

In re S.G.V.S, follows a similar line of reasoning articulated earlier in 2017 in the case of In re C.M.P., __N.C. App__, 803 S.E.2d 853 (2017), but reaches a different result . In that case, the Court of Appeals likewise addressed the constitutional implications of a trial court’s denial of a motion to continue at a termination of parental rights hearing. Like in S.G.V.S., a motion to continue was filed at the beginning of the proceeding due to the unanticipated delay of the respondent. The motion was denied and the trial proceeded in the respondent mother’s absence. Id. However, unlike in S.G.V.S., the respondent in C.M.P. did not account for her whereabouts and did not request to re-open the evidence. Throughout the proceeding, the respondent’s attorney was able to cross examine witnesses and object to the admission of evidence but did not preserve the constitutional issues of due process and ineffective assistance of counsel at trial that were later claimed in the appeal.

The Court of Appeals in S.G.V.S. found that the trial court did not abuse its discretion in denying the motion to continue even though it meant that the respondent would not be in court to assist the defense of their case. Among the reasons cited for this holding were that the respondent failed to preserve the issue of whether the denial of the motion violated her constitutional right to effective assistance of counsel, her attorney assisted in her defense in a recorded proceeding and the fact that respondent failed to contact the court or her counsel to inform them of any issue preventing her attendance at the hearing and provided no reason for her absence.  Quoting In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 240, rev other grounds, 356 N.C. 288, 570 S.E. 2d 212 (2002),  the court addressed this last point by stating that "[c]ourts cannot permit parties to disregard the prompt administration of judicial matters. To hold otherwise would let parties determine for themselves when they wish to resolve judicial matters." 

Other reported cases have emphasized the constitutional issue of confrontation rather than effective assistance of counsel or due process. For instance, a parent in the case of In re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983) was removed from the courtroom while the parent's eleven-year-old son testified in a proceeding to terminate respondent's parental rights. In that case, the North Carolina Court of Appeals found no error in the court’s decision to remove the parent since the parent's right to confront the witnesses against her was protected where each party's counsel questioned the child in the courtroom and the same was recorded. Id. Similar results were reached.

In the case of In re D.R., 172 N.C. App. 300, 616 S.E.2d 300 (2005), the court went even further in its responds to a Sixth Amendment claim that a respondent had the right to confront witnesses who made statements that were admitted as out of court testimony in a termination of parental rights case. In overruling that argument, the Court simply noted that the confrontation clause was applicable to criminal proceedings not civil proceedings. Since termination cases were civil, the argument simply did not carry weight.

In summary, it appears that whether a parent has a right to be in the court room depends on several factors. If the parent has representation, if their representation effectively engages in cross examination and objection to the admission of evidence, if the proceeding is recorded, and if the parent has a good excuse for being unavailable and has attempted to continue the matter, then there is a strong likelihood that justice will require their presence. Failing any of these critical ingredients, then it appears that the likelihood that a parent will successfully prevail on a claim of ineffective assistance or lack of due process will be considerably diminished.

School Tragedy; Hardened Schools; and the Fourth Amendment: Can We Keep Our Children Safe?

In an age of the Columbine, Virginia Tech, Sandy Hook and now Douglas High School tragedies, students fundamentally have a right to demand safe schools and school officials have an obligation to keep their students safe. 

But what legal tools are out there to make schools safe? And more importantly, what limit does the constitutional place on the use of such efforts to guarantee security?

As a general proposition, school officials have a wide ability to take actions necessary to secure a school campus. These actions can include the use of metal detectors (See New Jersey v. T.L.O., 469 U.S. 325 (1985)); sniffer dogs in common areas (Doe v. Renfroe, 475 F. Supp. 102 (N.D. Ind. 1979)); and student drug screens where reasonable and compelling justifications exist (Dominic J. v. Wyoming Valley West High School, 362 F. Supp. 2d 560 (M.D. Pa. 2005)). Finally, where individualized suspicion or special needs exists, students and their property may be subjected to a search by school personnel.(J.P. ex rel. A.P. v. Millard Public Schools, 830 N.W.2d 453 (2013)). Such searches can also extend to the abandoned or “lost” property of students (i.e. book bags, gym bags, and the like) (State v. Polk, 78 N.E.3d 834 (2017)).

However, with all of these capabilities possessed by school officials, the Fourth Amendment still applies to searches and seizures on school campuses to protect students from unreasonable and unauthorized intrusion into student privacy. For instance, while suspicionless drug screens may be mandated for students for participation in extracurricular activities, the school must first establish that there is a special need and a compelling government interest for such drug screens or the drug screens will be held unconstitutional. See Board of Education v. Earls,536 U.S. 822 (2002) . Likewise, while special needs searches and seizures may occur on school grounds, this right significantly diminishes when the search occurs off campus or after normal school hours. (See Webb v. McCullough, 828 F.2d 1151 (6^th Cir. 1987)). Finally, efforts to arm teachers, though such efforts would harden schools against violent intruders who view schools as “soft targets” suffer from the fact that there have been long standing prohibitions against guns on school grounds, prohibitions that have even been noticed by the U.S. Supreme Court. District of Columbia v. Heller, 554 U.S. 570 (2008).

With the tension that exists between creating a secure learning environment and preserving student civil liberties, school officials have a difficult task in balancing two mutually antagonistic objectives. More to the point, even when school officials successfully negotiate this balancing act, the question continues to remain one that has been aptly put by one commentator, “. . .[W]hile we harden the schoolhouse gate, practice new drills, and coordinate response times and active shooter tactics. . . are these efforts sufficient? (Todd A. Demitchell, Locked Down and Armed: Security Responses to Violence in Our Schools, 13 Conn. Pub. Int. L.J. 275 (2014).

The horrible news headlines of recent days quite clearly answer this question in the negative. 

If there is to be a solution, for the reasons just provided, the government will not likely be able to provide it, either through policy or legal practice. Rather, if any solution is to be had, it must in large part come from the citizenry at large, and most particularly those parents of school-age children whose mantra must increasingly be that “if one knows something, one must say something”. While no one can know everything at any given time, the aggregate of students and parents at a school can know quite a lot. Such crowd sourcing of data can be the source of information about a potential shooter, about a plot or scheme designed to bring harm, or even whether drugs are being sold in the school. Knowledge can be power but only if that knowledge is passed along to people who can act.

If those in society wish to keep children safe, the time has come for active engagement in our schools, providing school officials the information they need to minimize the problems that so often plague schools in the present day. Talk to your children; talk to other adults; if you know something that might be important, if you know of harm that can come to someone else, pass it along. Such active engagement might be the one thing that can prevent another tragedy.

A Subtle Point to Consider in a Case Where a Juvenile has been Alleged to be Neglected and/or Dependent

Can a child be neglected or dependent when the child, at the time of the adjudication, hasn’t being immediately impacted by neglectful parental behavior or is in a safe, alternative care-giving arrangement?

Surprisingly, the answer is both “yes” and “no”.

On the negative side of the equation, where a parent of a child has engaged in behavior which might be questionable but there is no impact on the child and no likelihood of an impact in the future as of the date of the adjudication hearing, an adjudication of neglect is inappropriate. The reason is that that to sustain an adjudication of neglect, the alleged neglectful conditions must cause the juvenile “some physical, mental, or emotional impairment” or create a substantial risk of such impairment. In re Safriet, 112 N.C. App. 747, 436 S.E.2d 898 (1993). Likewise, where that parent of a child is unable to provide appropriate care and supervision for a child but makes their own arrangement for the child to receive such care and supervision, then the child cannot be dependent. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007); In re B.P., __N.C. App.__,__S.E.2d__(January 18, 2018).

On the positive side of the equation, where a parent’s acts or omissions create a reasonable likelihood of injury or impairment as of the time of the adjudication hearing, even when that injury or impairment has not transpired, an adjudication of neglect is appropriate. “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the [adjudication] proceeding” which requires the trial court to “. . . consider the conditions [in the home] as they exist at the time of the adjudication as well as the risk of harm to the child from return to a parent[.]” See In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010).

Additionally, even when a juvenile has been placed in an appropriate home and is no longer immediately affected by a parent’s inability to provide for the child’s care or supervision, the critical inquiry is whether the parent created the alternative care arrangement or whether the parents is merely acquiescing to a plan developed by a county DSS. In the latter case, “. . .it is not enough that the parent merely goes along with a plan created by DSS” and doing so continues to make the child’s status dependent. See In re L.H., 210 N.C. App. 355, 366, 708 S.E.2d 191, 198 (2011); In re B.P.,__N.C. App.__, __S.E.2d__(January 16, 2018).

Thus in such circumstances where neglect or dependency are alleged with regard to a juvenile, the critical inquiry is always with reference to the facts and circumstances surrounding the child as of the time of the adjudication. However, when assessing the evidence of such facts and circumstances for a time period up to the time of the adjudication, it is not enough for the trial court to assess only what acts and/or omissions have been undertaken by a parent. Rather, the court must find a nexus between those acts and present injury or impact on the child (or the imminent likelihood of the same) and, in those cases where the child has been placed with a third party, pay particular attention to who arranged the placement.

The Strange Case of In re C.P.: Permanency Planning, Judicial Warnings, and (Now) a Mandated Delay in Permanence for Children in Juvenile Court

Maybe it was a Tuesday that, but for the holiday, should have been a Monday. . .

Otherwise, there seems to be little other explanation for the North Carolina Court of Appeals most recent decision in the case of In re C.P. , __.N.C.App.__,__S.E.2d__ (January 2, 2018) where the Court effectively created a procedural mandate that amounts to what can only be called a “juvenile court mulligan”.

The case itself is fairly straightforward. It all begins on July 14, 2015, when the Orange County Department of Social Services filed a juvenile petition alleging that a thirteen-year-old child was a neglected and dependent juvenile. A hearing was held on August 6, 2015 and an order was entered on August 27, 2015 in which the trial court adjudicated the child and his older sister as neglected and dependent, and awarded custody of Carl and his sister to their adult half-brother. The Respondent-mother appealed the ruling. On October 4, 2016, the Court of Appeals reversed and remanded the case for a new hearing because the order did not result from a proper adjudicatory hearing or valid consent by Respondent Mother. See In re K.P., C.P., ___ N.C. App. ___, ___, 790 S.E.2d 744, 749 (2016). On remand, the trial court held an “adjudication/disposition and permanency planning hearing” on March 2, 2017. The trial court again adjudicated the child as a dependent and neglected child, and awarded guardianship of the child to his adult half-brother. This order, which was dated March 21, 2017, was again appealed by the Respondent Mother.

On appeal, the Court of Appeals reversed the adjudication of dependency due to the fact that the child had seemingly always lived with a suitable relative. This is not surprising since a dependency adjudication always requires not only that the parent, guardian or caretaker be unable or unwilling to provide appropriate care but also that there be no other suitable alternative care arrangement. See N.C. Gen. Stat. 7B-100(9). Also understandable is the Court’s concern with the trial court which removed reunification as a plan without making necessary findings that the parent cannot provide a suitable home within the next six months as it is required to statutorily find. See N.C. Gen. Stat. 7B-906.1(e).The rest of the Court’s holding, however, where the court vacates the trial court’s order because it removed reunification as a plan at the first permanency planning hearing, requires explanation which has yet to be forthcoming.

One can concede that the Court in this part of its opinion rightly asserts that N.C. Gen. Stat. 7B-906.1(g) requires the court at a permanency planning hearing to “. . .inform the parent, guardian, or custodian that failure or refusal to cooperate with the plan [of care] may result in an order of the court in a subsequent permanency planning that reunification efforts may cease.”

However, the Court stumbles when it wrongly concludes that this statutory language constitutes a required judicial warning shot before the plug is pulled on reunification. In reaching its ultimate conclusion, a number of errors seem to have been made. First, the Court appears to have completely ignored the fact that reunification may be dispensed with altogether at the Dispositional hearing (well before any permanency planning hearing) if the trial court makes written findings of the existence of aggravating circumstances in its adjudicatory order. See N.C. Gen. Stat. 7B-901; In re G.T.,__N.C. App. __,__S.E.2d__, affirmed, __N.C.__ (December 22, 2017). Secondly, the Court seems to additionally ignore the language which proceeds subsection (g) in 7B-906.1 which provides that the trial court may at the first permanency planning hearing order a sole plan of termination and adoption (which as a  permanent plan negates the very concept of reunification) This is possible, according to N.C. Gen. Stat 7B-906.1, either because the parent cannot provide a safe, permanent home for the child within the next six months ( subsection e) or because the child has been in the custody of a county department of social services for 12 of the most recent 22 months and the parent has either (a) abandoned the child; (b)has committed murder or voluntary manslaughter of another child of the parent; or (c) has aided and abetted , attempted, conspired or solicited to commit murder or voluntary manslaughter of the child or another child of the parent. See N.C. Gen. Stat. 7B-906.1(f). In fact, the only factors that can keep a court from taking reunification away as a plan in such circumstances is if the permanent plan is already guardianship or custody with a suitable third party; termination is in some way contrary to the child’s best interest; or the county department of social services has not provided the juvenile’s family with necessary services to enable the child home. See N.C. Gen. Stat. 7B-906.1(f)(1-3).

Finally and most damaging, the Court appears to miss the very significant policy implications of giving a parent at a permanency planning hearing what, in golfing parlance, would be deemed a “mulligan”.  While there are no time requirements imposed on hearing a permanency planning hearing, and while it is conceded that the permanency planning hearing in In re C.P. took place right after Disposition, the vast majority of juvenile cases do not follow this pattern. In fact, most permanency planning hearings take place at a point where nearly a year has passed while a child has remained in the custody of a county department of social services. The holding of In re C.P. has the frustrating effect of unnecessarily prolonging a child’s stay in custody without the possibility of relief at the first permanency planning hearing.

Why?

Apparently because the trial court will be from now on required to inform the parents (if it hasn’t already done so a number of times) that they need to get their act together or bad things might happen down the road. In the vast majority of cases, if the parents haven’t gotten their act together in nearly a year, they aren’t suddenly going to come to their senses simply because a trial judge urges them to do so.

This part of the holding in In re C.P. is bad for children, because now they have to wait even longer for a permanent plan that does not involve reunification without any good reason, legal, equitable, or otherwise. It requires rectification, sooner rather than later, whether that comes through a revised opinion before the expiration of the mandate or reversal by the North Carolina Supreme Court.

Drafting Orders in Juvenile Permanency Planning and Permanency Planning Reviews: A Guide for the Perplexed

With an almost medieval fixation on required legal formula and “magic incantations”, the North Carolina legislature and the Court of Appeals have made the practice of crafting orders in juvenile cases an increasingly difficult task. With so many mandated requirements, including standards of evidence that occasionally change midstream, the judge or lawyer tasked with drafting an order is faced with so many snares and pitfalls that they might think they had suddenly been transported to latest instalment of the Indiana Jones franchise. Nowhere is order drafting more difficult than when it comes to drafting permanency planning hearing and permanency planning review orders.

Several years have now passed since review and permanency planning hearings were lumped under the then newly created statute, North Carolina General Statute 7B-906.1. The most daunting components of the now combined statute relate to the cessation of reunification efforts , the imposition of an alternative plan of care, and the requirements related to changing custody to a person other than a parent. These difficult areas will be outlined in turn in what follows.

Cessation of Reunification Efforts

An inherent but rebuttable assumption in juvenile cases, even where non-secure custody has been taken over a child, is that parents will have the opportunity to either work toward the goal of either family preservation (in those instances where custody remains with a parent or parents) or reunification (where custody is temporarily removed). This presumption stems from the constitutional protection afforded to parents to be able to raise their children as they see fit as long as they are fit (or capable of being fit) or as long as they act (or begin to act) consistently with their constitutionally protected status as parents. See N.C. Gen. Stat. 7B-901(c); 7B-906.1(e); Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1991); In re K.L., __N.C. App.__,__S.E.2d__(July 5, 2017).

Of course, where a parent has engaged in really bad behavior that has led to the filing of a juvenile petition—such as abandoning the child, committing murder or voluntary manslaughter of another child of the parent or aided or abetted the same---this presumption can be disposed of right at the first Dispositional Hearing. See N.C. Gen. Stat. 7B-906.1(f). Likewise, where the child has remained in the temporary custody of the county department of social services 12 of the most recent 22 months next to the filing of the juvenile petition, this presumption can also be disposed of by the trial court at a subsequent review or permanency planning hearing. Id. It is also possible for the court to make such a determination prior to the passing of the 12 month period if the court first determines that it is not possible for the juvenile to be placed with a parent within the next six months. See N.C. Gen. Stat. 7B-906.1(e). However, if the court does make any of these findings and it additionally finds that a plan of reunification should no longer be the plan of care for the juvenile, the trial court must make its findings by clear, cogent and convincing evidence, even though the other findings might be permissibly found by the preponderance standard. See Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001); In re K.L., __N.C. App.__,__S.E.2d__(July 5, 2017). The failure of trial courts to make such findings and to find that reunification should not be the plan of care by the clear, cogent and convincing evidence standard has been the source of heartache for a number of judges who have seen their cases reversed or vacated and remanded.

The Imposition of an Alternative Plan of Care

If it is clear to the trial court at a review hearing that reunification is contrary to the best interest of a juvenile, a permanency planning hearing must be scheduled within 30 days of the hearing where reunification is removed as a plan. See N.C. Gen. Stat. 7B-901(d). At the permanency planning hearing, the trial court must then make careful examination of the plan alternatives that make written findings regarding each of them, including whether legal guardianship or custody with a relative or some other suitable person should be established; whether adoption should be pursued; and whether the juvenile should remain in their current placement or be placed in another alternative permanent living arrangement (APPLA). See N.C. Gen. Stat. 7B-906.1(e). In addition, at subsequent permanency planning hearings, the court, in addition to re-evaluating the appropriateness of all the possible plans, must also make a written determination whether the county department of social services made reasonable efforts to effectuate the permanent plan or plans since the initial permanency planning hearing. Id.

Changing Custody to a Person Other than a Parent.

The most significant task confronting the trial court in a juvenile case at a permanency planning hearing is implementing a plan which requires a change in custody or conferral of guardianship upon a third party. To do so, the court must engage in a one to two-step process. First, in those cases where the trial court has previously entered an order of custody, the court must subsequently determine that “. . .there has been a substantial change in circumstances affecting the welfare of the child; and (2) a change in custody is in the best interest of the child.” See N.C. Gen. Stat. 7B-1000; In re A.C., __ N.C. App. __, 786

S.E.2d 728 (2016). Second, regardless of whether the court has previously entered an order of custody, in order to confer custody upon a third party, the court must make a determination that each parent is either unfit or is acting inconsistently with their constitutionally protected status as a parent. See In re K.L., __N.C. App.__,__S.E.2d__(July 5, 2017). Again, failure to do so will result in a trial court’s orders being reversed or vacated and remanded.

Thus, one can readily see that drafting court orders, particular those related to permanency planning or permanency planning review, is a difficult and potentially dangerous practice in these current times. The only relief and guidance is to be found in persistent attention to the statutory requirements, keeping up to date on the latest statutory interpretations by the Court of Appeals and the Supreme Court, and in careful drafting. With increased case-loads in the area of child welfare in the past few years, putting in this extra effort is a luxury few can afford. Yet it is clear that it is necessary and a requirement of competent legal representation.  To quote Benjamin Franklin, an ounce of prevention is truly worth a pound of cure.

The Fourth Amendment and Social Services: What are the Limits on Assessments and Investigations?

In a recently released statement drafted by the North Carolina Attorney General’s Office, county social services agencies were advised that drug screens upon children  are considered a Fourth amendment Search and therefore require either parental permission, a court order, or  “exigent circumstances” before they could be performed.  This guidance is nothing new. In fact, the Division of Social Services of the North Carolina Department of Health and Human Services has since December of 2016 advocated this specific course of action for drug endangered children. See N.C. Div. Soc. Svcs. Family Services Manual, Vol. 1, Chapter IX (December 2016) Nonetheless, it has widely been common knowledge that some county child welfare agencies have been conducting such drug screens on children as a matter of routine practice without either parental permission or court authorization (and for the record, these are not agencies in Judicial District 22A, which includes both Iredell or Alexander counties). While the efficacy of the Attorney General’s position has yet to be tested in the courts, there is strong evidence to suggest that county social services, while not usually be considered agencies of the state in the same way as law enforcement, may nevertheless engage in behavior that implicates the Fourth Amendment. As such they are restricted in the same way as law enforcement in their ability to conduct searches and seizures in child welfare assessments and investigations. 

What are these areas?

The most notable areas are those involve searches of the home and of the person. With regard to the home, county social services agencies are prohibited from entering a home pursuant to an assessment of investigation absent (1) a reasonable belief that a juvenile is in imminent danger of death or serious physical injury; (2) the permission of the parent or person responsible for the juvenile’s care; (3) the accompaniment of a law enforcement officer who has legal authority to enter; or (4) an order from a court of competent jurisdiction. See N.C. Gen. Stat. 7B-302(h).  It should be noted that the N.C. Administrative Office of the court’s Order for non-secure custody specifically provides for the court to allow law enforcement to enter a home for the purpose of protecting a child who is at imminent risk. See AOC-J-150 at http://www.nccourts.org/Forms/Documents/483.pdf.

With regard to searches of the person, the first restriction relates to searches of a custodial parent. Absent a parent’s permission and acquiescence or a court order, a social services agency cannot compel that parent to submit to medical examination or drug screen. However, this does not mean that a parent is immune to being ordered to submit to a medical examination or drug screen before a juvenile adjudication, as the same is specifically provided for in Rule 35 of the North Carolina Rules of Civil Procedure. Likewise, following adjudication and pursuant to the dispositional orders of the juvenile court, a parent ordered to submit to random drug screens must submit to the same or face being held in civil contempt. See N.C. Gen. Stat. 7B-904; N.C. Gen Stat. 5A-21-24.

As to other searches of the person, a county department of social services has authority pursuant to an order of non-secure custody pursuant to N.C. Gen. Stat. 7B-505.1 or a dispositional order pursuant to N.C. Gen. Stat. 7B-903-7B-903.1 and 7B-906.1 to provide routine medical and dental care or treatment; emergency medical, surgical, psychiatric, psychological or mental health care or treatment and testing and evaluation in exigent circumstances. This latter provision encompasses the drug screening of children that was the subject of the N.C. Attorney General’s latest admonition. It also includes a child medical examination which may only be performed if the court makes written findings demonstrating that the county social services agency has a compelling interest in such an evaluation prior to a regular non-secure custody hearing. See N.C. Gen. Stat. 7B-505.1(b).

Thus while case law has long distinguished the work of social services agencies, whose primary task is to protect children, from the work of law enforcement, whose task is to “ferret out crime”, it is important to realize that both social workers and law enforcement officers can still be subject to Fourth Amendment scrutiny, especially when the tasks each performs become more similar in nature. North Carolina’s legislature has sought a middle ground which recognizes the importance of protecting children while at the same time recognizing a parent’s constitutional right to privacy.  The North Carolina appellate courts, excepting the infamous case of In re Stumbo, for the most part have done likewise, staying away from a full throttle imposition of a warrant requirement upon social worker investigations. See In re Stumbo,357 N.C. 279; 582 S.E.2d 255 (2003) . How long this restraint lasts depends in part upon the temperament of times. But it depends also upon every social worker and law enforcement officer to have a strict understanding of their specific roles , being religious-like in their devotion to and observance of legislative and case law restrictions which protect all children and all  parents from governmental over-reach.