Archive

• The Indian Child Welfare Act and Subject Matter Jurisdiction in Child Welfare Actions

  This entry was contributed by Sara DePasquale on February 3, 2020 at 7:01 am and is filed under Child Welfare Law.

  The Indian Child Welfare Act (ICWA)* is a complex federal law that applies to abuse, neglect, or dependency (A/N/D); termination of parental rights (TPR); and adoption proceedings. One of the purposes of ICWA is to provide special protections to federally recognized Indian tribes and the tribes’ children and families. See 25 U.S.C. 1901‒1902.

  Subject matter jurisdiction between tribal courts and state courts is governed by ICWA when an “Indian child” is the subject of the A/N/D, TPR, or adoption proceeding. When any of the criteria of 25 U.S.C. 1911(a) are met, the tribal court has exclusive subject matter jurisdiction. When that criteria do not exist, ICWA allows for concurrent jurisdiction between state and tribal courts. See 25 U.S.C. 1911(b), (c). The N.C. Court of Appeals (COA) recently published two opinions addressing subject matter jurisdiction under ICWA. In one case, the COA held that the N.C. court had jurisdiction in an adoption proceeding that involved two Indian children. In the other case, the COA remanded for further proceedings in the trial court in part to ensure the trial court had subject matter jurisdiction in the A/N/D action when it was uncertain whether the child was an “Indian child.”

  A takeaway from these cases is that the N.C. court is not automatically divested of subject matter jurisdiction when an Indian child is the subject of the proceeding. But, how does the N.C. court know if it has subject matter jurisdiction? Continue Reading

• BIG NEWS: S.L. 2019-245 Creates a New Universal Mandated Reporting Law for Child Victims of Crimes and Changes the Definition of “Caretaker”

  This entry was contributed by Sara DePasquale on November 13, 2019 at 9:00 am and is filed under Child Welfare Law.

  This post was amended October 3, 2023 to reflect a new statutory exemption for reporting.

  An Act to Protect Children from Sexual Abuse and to Strengthen and Modernize Sexual Assault Laws, S.L. 2019-245 (S199) enacts and amends various laws related to crimes;* amends some civil and criminal statutes of limitations; requires mandatory training for school personnel addressing child sex abuse and trafficking; amends the definition of “caretaker” as it relates to child abuse, neglect, or dependency; and creates a new universal mandatory reporting law for child victims of certain crimes.

  Continue Reading

• 2019 N.C. Legislative Changes to the Juvenile Code Related to Abuse, Neglect, Dependency and TPRs

  This entry was contributed by Sara DePasquale on October 10, 2019 at 1:59 pm and is filed under Child Welfare Law.

  Although the 2019 Legislative Session has not yet adjourned, there have been changes made to the abuse, neglect, dependency and termination of parental rights statutes in the Juvenile Code (G.S. Chapter 7B). The changes discussed below are already effective as law. There may be more changes to come given that the legislature has not adjourned. For now, here are key highlights of the changes to the Juvenile Code related to child welfare. Continue Reading

• What Can the District Court Do in an A/N/D or TPR Action when an Appeal Is Pending?

  This entry was contributed by Sara DePasquale on August 2, 2019 at 1:12 pm and is filed under Child Welfare Law.

  The North Carolina Juvenile Code (G.S. Chapter 7B) establishes the substantive law for abuse, neglect, dependency (A/N/D) and termination of parental rights (TPR) actions and also sets forth specific procedures. Although A/N/D and TPR cases are civil proceedings, many of the juvenile procedures differ from the general rules that apply to civil actions. One of the procedural differences applies to the district court’s jurisdiction in the underlying action when an appeal is pending. Continue Reading

• When Does Delinquency Result in Abuse, Neglect, or Dependency?

  This entry was contributed by Sara DePasquale on May 28, 2019 at 6:42 am and is filed under Child Welfare Law, Juvenile Justice.

  A juvenile may be involved with both the juvenile justice and child welfare systems. These youth are sometimes referred to as “dual jurisdiction” or “crossover youth.” Two of the ways a juvenile in North Carolina may be involved with both systems is when the juvenile is the subject of a delinquency action, and

  • in that action, the court orders the juvenile placed in DSS custody or guardianship (G.S. 7B-1902‒1907; -2506(1)c.; -2001); and/or
  • there is also cause to suspect that the juvenile is abused, neglected, or dependent, which if substantiated by a county child welfare agency (hereinafter “DSS”) may result in a separate abuse, neglect, or dependency action that the juvenile is the subject of.

  Both of these ways applied to one of the very few appellate opinions that address these dual jurisdiction youth: In re K.G., 817 S.E.2d 790 (2018). In that case, K.G. was adjudicated delinquent and placed in DSS custody through an order entered in the delinquency action. DSS then initiated a separate dependency action, which was based largely on the juvenile’s conduct and refusal to live with his parents. In that new action, K.G. was adjudicated dependent. That adjudication was appealed and reversed by the court of appeals, which held the petition failed to allege dependency and stated the juvenile’s willful acts do not determine a parent’s ability to care for their child.

  So, when does delinquency result in abuse, neglect, or dependency? Continue Reading

• The ICPC Applies to an Out-of-State Placement with a Relative in an A/N/D Case, But Is There More to Consider?

  This entry was contributed by Sara DePasquale on August 24, 2018 at 4:39 pm and is filed under Child Welfare Law.

  A child has been adjudicated by the district court as abused, neglected, and/or dependent. At the dispositional phase of the case, the trial court determines it is in the child’s best interest to place that child with a relative. In fact, the court is required to give a relative priority when making an out-of-home placement. See G.S. 7B-903(a1). The relative, however, lives in another state. The placement must be made in accordance with the Interstate Compact on the Placement of Children (ICPC). Id. The Court of Appeals recently addressed whether the ICPC applied to an out-of-state relative placement in In re J.D.M.-J., ___ N.C. App. ___ (June 18, 2018). Continue Reading

• 2018 N.C. Legislative Changes Impacting Child Welfare

  This entry was contributed by Sara DePasquale on July 9, 2018 at 9:00 am and is filed under Child Welfare Law.

  The 2018 Legislative Session created and amended various North Carolina statutes affecting child welfare. Some of those changes are effective now and others at later dates. Here are the highlights. Continue Reading

• In re A.P.: A County DSS Director’s Standing to File an A/N/D Petition Is Not as Limited as Previously Held by the Court of Appeals

  This entry was contributed by Sara DePasquale on June 14, 2018 at 1:06 pm and is filed under Child Welfare Law.

  Last year, the Court of Appeals held that only a director (or authorized representative) of a county department of social services (DSS) where the child resided or was found at the time a petition alleging abuse, neglect, or dependency (A/N/D) was filed in court had standing to do so. In re A.P., 800 S.E.2d 77 (2017). Because standing is jurisdictional, when a county DSS without standing commences an A/N/D action, the district court lacks subject matter jurisdiction to act. Id.; see my earlier blog post discussing this holding here. This holding had an immediate impact on A/N/D cases throughout the state. Because subject matter jurisdiction can be raised at any time, both new and old cases were dismissed either through a voluntary dismissal by DSS or a motion to dismiss filed by another party in the action. After dismissal, new petitions for these same children were filed, sometimes after a child was transported to a county for the purpose of giving the county DSS director standing to commence the action. The North Carolina Department of Health and Human Services (DHHS) notified county DSS’s that the holding in In re A.P. superseded DHHS policy on conflict of interest cases, recognizing that contrary to the policy, a county DSS with a conflict may be the only county DSS with standing to file an A/N/D action after a partner DSS determines there is a need to file a petition because of abuse, neglect, or dependency. See CWS-28-2017.

  Last month, the North Carolina Supreme Court reversed the Court of Appeals holding, stating the statutory interpretation was too restrictive and contrary to children’s best interests. In re A.P., 812 S.E.2d 840 (2018).   Continue Reading

• And Now a Two-Step: Eliminating Reunification as a Permanent Plan in an A/N/D Proceeding

  This entry was contributed by Sara DePasquale on May 3, 2018 at 7:18 am and is filed under Child Welfare Law.

  Since this post was published, the NC General Assembly enacted S.L. 2019-33, effective Oct. 1, 2019. Amendments include removal of the words “remain” and “subsequent” in the statutes addressing permanency planning.

  First came the cease reunification efforts shuffle resulting from 2015−2017 statutory changes to the NC Juvenile Code and published appellate decisions interpreting those changes (see my last blog post, here). And now, In re C.P., ___ N.C. App. ___ (March 6, 2018) has created the elimination of reunification as a permanent plan two-step. Continue Reading

• The Cease Reunification Efforts Shuffle in A/N/D Actions: It’s All about the Timing

  This entry was contributed by Sara DePasquale on March 2, 2018 at 10:26 am and is filed under Child Welfare Law.

  NOTE: Since this post was published, S.L. 2018-86 was enacted effective for all initial disposition orders that are effective on or after June 25, 2018. G.S. 7B-901(c) has been amended to add the word “determines” and supersedes the holding of In re G.T., ___ N.C. App. ___, 791 S.E.2d 274 (2016), aff’d per curiam, 370 N.C. 387 (2017). 2018 legislative summaries impacting child welfare are discussed here.

  Abuse, neglect, or dependency court proceedings have several different stages, one of which is the dispositional stage. The dispositional stage, which occurs only after a child has been adjudicated abused, neglected, or dependent, has several different types of hearings: initial, review, and permanency planning. During the various dispositional hearings, a court may address reunification efforts, which involve the diligent use of preventive or reunification services by a DSS when a child’s remaining in or returning to the home of a parent is consistent with achieving a safe permanent home for the child within a reasonable period of time. See G.S. 7B-101(18). How a trial court may address reunification efforts, including whether to relieve DSS from making those efforts, differs depending on the type of dispositional hearing. That is what the reunification efforts shuffle is all about. Continue Reading