Title IX and Transgender Facilities Access: Divided Courts and No Consensus

          North Carolina's House Bill 2 continues to make national headlines. Yet, it bears mentioning that Title IX's applicability to allowing transgender access to school facilities is one that has embroiled several states, not just North Carolina. Of course, it is not surprising to understand that transgender individuals have been secretly using the restroom of their preference for as long as there have been restrooms. What is new under the sun is that transgender subjective choice can amount to a legal right. The controversial idea gained significant foothold after the U.S. Department of Education provided written guidance to school systems regarding the interpretation of the term "sex" as defined used in Title IX. See Office of Civil Rights, Dept. of Educ., Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities 25 (2014) available at http://www2.ed.gov/about/offices/list/ocr/docs /faqs-title-ix-single-sex-201412.pdf. See also G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. Va. 2016).

      According to the Department, the term "sex" is not a matter to be interpreted strictly according to biology but must rather encompass an individual's subjective gender identity as well. As such a transgender individual, according to the Department, has a legal right to utilize school bathroom or locker room facilities that match their subjective gender identity, even if this differs from their biological gender. The response to this has been far from uniform, with school systems in different districts alternatively coming in to conformity with the Department's guidance or choosing to litigate the issue.

     For instance, in one Illinois school district, school officials entered into an agreement with the Department of Education’s Office of Civil Rights to allow transgender students to utilize locker and restroom facilities that correspond to transgender students' subjective sexual identity, something that previously would have been off-limits. This action was subsequently challenged in federal court on grounds that the school system’s agreement with the Department of Education . . . “trample[s] students' privacy and other constitutional and statutory rights by forcing 14- to 17-year-old girls to use locker rooms and restrooms with biological males." See Students& Parents for Privacy v. United States Dep't of Educ., 2016 U.S. Dist. ___(N.D. Ill. June 15, 2016). Similar litigation has developed in other jurisdictions raising essentially the same issue: inadequate facility management which has created an unsafe educational environment. Currently, a number of states have litigation pending, the results being far from one sided. A sample of the most significant litigation follows:


Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d 657, 661 (W.D. Pa. 2015)( No Equal Protection, Title VII, or Title IX violation by requiring transgender student to use facilities that correspond to biological sexual identity)


Bd. of Educ. v. United States Dep't of Educ., 2016 U.S. Dist. ____ (S.D. Ohio Aug. 15, 2016); G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. Va. 2016) (Fourth Circuit reverses trial court dismissal of transgender claim of violation of Title IX claim and remands for trial court consideration of Department of Education guidance as controlling authority in determining whether Title IX violation had occurred)


Texas v. United States, 2016 U.S. Dist. LEXIS 113459 (N.D. Tex. Aug. 21, 2016) (Preliminary injunction granted enjoining U.S. Department of Education from enforcing its guidance recommendations against recalcitrant school district).


Bd. of Educ. v. U.S. Dep't of Educ., 2016 U.S. Dist.____ (S.D. Ohio Sept. 26, 2016) (Preliminary injunction of transgender student granted prohibiting school district from prohibiting use of restroom that conforms to students subjective gender identity).

Court of Appeals: counsel's few words during 19 minute TPR hearing troubling but not per se inneffective assistance.

     What is a defense attorney to do? One attorney no doubt was asking this question in a 2015 Orange County, North Carolina District Court case that landed this summer before the North Carolina Court of Appeals. The case, In the Matter of T.D. and J.D., __N.C. App.__,__S.E.2d__(July 19, 2016), involved a Respondent with a long history of serious substance abuse issues and a history
of not complying with court directives. The hearing before the Orange County District Court lasted all of 19 minutes. During that time, the Respondent alleged in her appeal, that her counsel " . .uttered fewer than fifty words during the entire termination hearing , most of which were irrelevant to the proceeding. . .did not introduce any evidence at either the adjudication or the disposition stage of the hearing; and. . .never objected to the trial court finding termination of parental rights in the juveniles’ best interests."

     Such allegations are no doubt serious, especially when the Court of Appeals in its opinion found the "respondent’s characterizations of her trial counsel’s actions, or lack thereof. . . . fully supported by the record." Not surprisingly, the case was remanded to the trial court for further fact finding on the issue of effective assistance of counsel and if present, whether such a deficient performance prejudiced respondent such that she is entitled to a new termination of parental rights hearing.

     On remand, a number of questions will indeed have to be asked, particularly with regard to counsel's ability to consult with the respondent and whether she had adequately assisted counsel in the preparation of the defense of the hearing. Notwithstanding the ultimate outcome of the case, a few things bear emphasis with regard to defense counsel's obligation at any juvenile hearing, regardless of the assistance provided by the client.

     First, if the client is absent, has provided counsel no assistance and no direction as to the client's position, this same fact should be placed on the record. In fact, ethical requirements may mandate such behavior. (See RPC 223- mandatory withdrawal where attorney unable to locate client after diligent search; 03 FEO 16 same as applied to dependency proceedings with the addition that counsel may not advocate for a particular position). Second, when the client is present at the hearing and is available for consultation, the attorney not only has the obligation to consult with the client about the direction they wish to take during the litigation but advocate zealously on the client's behalf to the extent permitted by legal and ethical constraints. (See In re S.N.W., 204 N.C. App. 556, 560, 698 S.E.2d 76, 79 (2010)). This may not give the attorney much to work with in terms of a substantive defense. However,  it must be remembered that it is not the respondent's obligation to provide any evidence at the adjudicatory stage of an dependency or termination proceeding. Accordingly,  it is entirely appropriate to follow a strategy where the defense confines its case to taking pot shots, if you will, at the evidence provided by the county department of social services: challenging witnesses and evidence provided by the petitioner or movant calculated to establish the dependency case. Under very few circumstances is it legally or ethically acceptable to remain essentially silent if a client's wishes are clearly able to be ascertained through simple consultation. Doing so is perilous, exposes one to an ineffective assistance claim, and probably will result in an unpleasant call to one's liability insurance carrier.

North Carolina Juvenile Code: Practice and Procedure-2014-2015 Edition

   The newest edition of North Carolina Juvenile Code: Practice and Procedure will be available through Thomson Reuters Westlaw in the next few months. The proof copy has just been returned and it is now simply a matter for the final production process to come to its natural conclusion.
   Readers will find an abundance of changes brought about by the North Carolina General Assembly in 2013. Among those changes included in the work include new statutes governing juveniles, include those relating to review and permanency planning hearings; the responsible individual list; guardianship for parents; and termination of parental rights, among others. Of course, the latest case law updates are included to assure that the work provides the most timely guidance of any publication in North Carolina.
  While other publications have arrived on the scene in recent years purporting to provide practitioners with authoritative guidance with respect to the juvenile code, the fact remains that North Carolina Juvenile Code: Practice and Procedure is a title that has been trusted by attorneys all over North Carolina and the Southeast for over a decade. Moreover, no other publication can make the claim to comprehensive treatment of all aspects of juvenile jurisprudence, not just part of the Code as is chosen by some publications.
   Choose the best--reserve your copy soon!

Relevant TPR Factors and Determining the Best Interest of a Child

   During the adjudication stage of every termination of parental rights case, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a). Once this determination is made, the trial court then may proceed to the dispositional stage where a determination is made as to whether terminating the parents' rights is consistent with the best interests of the child. N.C. Gen. Stat. § 7B-1110(a).

   In determining a child's best interest, the question arises as to what is to guide the court's dispositional determination. The statutory answer is that the court is required to consider certain enumerated factors set forth in N.C. Gen. Stat. § 7B-1110(a)which include (1) the age of the juvenile; (2) the likelihood of adoption of the juvenile; (3) whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile; (4) the bond between the juvenile and the parent;(5) the quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement; and (6) any other relevant consideration.

   The critical factor then, is relevance: if a particular enumerated factor is relevant in the case before the court, then the court must consider that factor when deciding whether the child's rights will be served by terminating parental rights.In re J.L.H., __ N.C. App __, 741 S.E.2d 333 (2012).
   But does this mean that the trial court must make findings regarding every enumerated factor? The short anser is in the negative: the Court of Appeals has recently clarified that consideration by a trial court of 7B-1110 factors does not amount to ". . .mak[ing] written findings with respect to all six factors; rather, as the plain language of the statute indicates, thecourt must enter written findings in its order concerning only those factors “that are relevant.” In re D.H., __N.C.App.__, __S.E.2d__(February 4, 2014). Once a court determines what factors are relevant, it should makign specific, written findings concerning them in its order.N.C. Gen. Stat. § 7B-1110(a).
   Thus, to satisfy the statute, it is altogether sufficient if the trial court makes written findings about its over-all consideration of the 7B-1110 factors, noting specifically which factors it found relevant and then proceed to apply those relevant factors to justify its decision as to whethere termination is in the child's best interest.

Voiding Relinquishments that are Older than Six Months Old

   A permanent plan should be permanent in a juvenile case. That is, unless it doesn't work. In those cases where a plan of adoption was settled upon by the reviewing court and a necessary relinquishment cannot be obtained, N.C. Gen. Stat. 7B-909 permits the DSS to motion the matter back into court to have any previously obtained relinquishment rendered void. An order for such relief can only come after the agency gives at least 15 days advanced notice of its intent  to the previously relinquishing parent. Further, it must be the case that the agency is taking no steps to terminate the non-relinquishing parent and that the relinquishment is at least six months old. At the hearing, the relinquishing parent has the ability to be heard on the issues of whether the relinquishment should be voided and the parent's plan to provide for the juvenile should the relinquishment tendered by that parent be rendered void.
   North Carolina Statute 7B-909 appears, then, to be a way of recovering from a plan of TPR/Adoption which, in hindsight was ill conceived or was compromised by post plan change circumstances, such as adverse behavior by the juvenile which has disrupted placements, the discovery of adverse and severe medical conditions affecting the child which complicate adoption, the inability to place a child due to age and a lack of adoptive parents, or other such circumstances.
   With the good, of course, there is always the bad and it should be noted that the statute does not provide an absolute win-win situation. For instance, a relinquishment from a parent that is rendered void makes more acute the possibility that the county voiding the relinquishment will seek child support from the parent. This is particularly troubling to a parent whose entire reason for relinquishing was based upon an agreement with social services that, in exchange for a relinquishment, stated that child support would be ceased and only the accumulated arrearages collected.
    From the agency's standpoint, the situation is even more concerning. The original plan of adoption could only have arisen as a result of the court finding that the parent was not able to provide for the needs and care of the minor child, either at the time of the hearing or in the near future. Perhaps enough time will have elapsed and the relinquishing parent now has a greater sense of purpose and wherewithal to accomplish those things that need to be done for the child. As pleasing a scenario as this might be, it must definitely be considered to be an unlikely one. Placing a child back in the home of a parent who has for at least a year allowed a child to languish is not without probable downfalls. It all likelihood, it will spell further trouble for the child forced into this situation, which will in turn lead to a report and no doubt, further DSS involvement.
   The moral of the story, to the extent that there is one, is to make sure the permanent plan in any case considers both the best and worst possible situations and that it has a way to deal with both. In the event that the situation is far worse than could have been imagined and resort must be made the General Statute 7B-909,  care must be taken from the standpoint of both the relinquishing parent and the agency to avoid entry back into the malaise that previously characterised the case, the very conditions, that started the parties talking about relinquishment in the first place.

Permanent Orders, Material Change, and Juvenile Review

  Contrary to widely held belief in the legal community, in North Carolina Chapter 50 custody actions, there is no such thing as "permanent custody." All determinations of custody are temporary in nature even if the intent of the court and the parties is to make them durable. All custody orders, whether fashioned through Chapter 50 or Chapter 7B, must be consistent with the best interests of the child. See Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); In re Smith, 56 N.C. App. 142, 287 S.E.2d 440 (1982). What this practically means is that child custody determinations are about the child whose needs change, following the child's physical, emotional and intellectual development and ever changing requirements. Such determinations are not really at all about the wishes and desires of the litigants, though there is no doubt that equitable considerations play a role in furthering these. What is in the best interest of a child is, of course, subject to change. Thus, custody orders of whatever origin are always modifiable based upon the universal standard-that there has occurred a material change in circumstances. See In re Mason, 13 N.C. App. 334, 185 S.E.2d 433 (1971; Crosby.
  Recognising that a material change in circumstances is required to modify an existing child custody determination, the obvious question is then what constitutes a "material change." The answer to this in large part is subjective and depends upon the facts and circumstances of each case. However, regardless of the a case's subjective factual variability, all material changes, if they are to affect custody, must have an established nexus with the welfare of the child. This may be immediately and profoundly manifest (i.e. the party vested by the court with primary custody is deceased) or it may be more subtle (i.e. the child has developed special needs that cannot be well provided for by the custodial party but may be provided for more effectively by the party with secondary custody). For the later, see Metz v. Metz, 138 N.C. App. 538, 530 S.E.2d 79 (2000). Either way, the change or changes cumulatively must substantially and materially affect the welfare of the juvenile
and may not have been in play at the time the original custodial order was entered.

The Promise of Adoption Assistance cannot be the Sole Reason to Terminate Parental Rights

   North Carolina statute prohibits a court from terminating parental rights ". . .for the sole reason that the parents are unable to care for the juvenile on account of their poverty." N.C. Gen. Stat. 7B-111(a)(2). When a trial court takes into consideration the availability of adoption assistance resources in fashioning its adjudicatory order in a termination case, has it violated public policy?

   The North Carolina Court of Appeals, in the Cumberland County case of In re T.J.F., __N.C.App.__ (NO. COA13-707, November 19, 2013),answered in the negative-but perhaps only because the trial court had terminated parental rights for other reasons outside of the financial resources available to a child.

   In reaching its opinion, the Court relies on the fundamental premise, first articulated in In re Montgomery,that the court's paramount concern is the "best interest" of the juvenile, the "pole star" around which all juvenile court decision making revolves. As the Court noted, the Respondent Father's objection to the trial court's consideration of adoption assistance -financial resources paid by the State to adoptive families where children meet certain criteria-might have had some merit if it had been to only basis for termination cited by the court. As it stood ". . .the court cited other bases in its determination that termination of parental rights was in [the child's] best interest. In making a determination of the
disposition in the child’s best interest a court may assign more

weight to one or more factors over the others. . .Here, consistent with the purpose of protecting the child from abuse or neglect,

the bulk of the court’s findings of fact in the adjudication and

disposition orders is devoted to the failure of respondent-father to satisfy his parental obligations to his child by withholding his presence, affection,and support. Only one mention is made concerning the possibility of the child’s obtaining financial benefits by beingadopted by her maternal grandparents."
   Thus too much reliance on the fact that economic goodies at the end of the tunnel can run a trial court afoul of public policy which explicitly against terminating parental rights merely because one is poor. Thus is the moral of the story, at least as far as In re T.J.F.. However, a more salient question arises in a slightly different context: to what extent can economic benefits that might accrue to a child ever be the primary factor in any juvenile decision? Those who regularly practice in the juvenile courts are well aware that such issues frequently arise. A prime example is where, following cessation of reunification efforts with a parent, the court is posed with the dilemma of finding a third party to provide a permanent plan for the child. Does the Court opt to keep the child with foster parents who, with the assistance of of the State, is able to abundantly provide for the material needs of a juvenile? Or does the Court defer to an available and appropriate relative placement who can maintain a degree of family connectedness for the juvenile but whose cash reserves are considerably strained? If the court sides with the foster parents, solely based upon what they can financial provide, isn't that tantamount to endorsing the evil that N.C. General Statute 7B-1111(a)(2) seeks to prevent?
   As they say, money isn't everything. The court's discussion about economics as a basis for termination, while not dicta, was nonetheless scant and unsubstantive. However, the day will come when this same Court of Appeals will have to determine to what extent money-although not everything-is or is not something.