• 2023 Child Welfare Legislative Changes

    Download PDF

    As the 2023 Legislative Session continues, many session laws that amend child welfare statutes, including abuse, neglect, dependency; termination of parental rights (TPR); adoption of a minor; and foster care licensing became effective on various dates. Some of these changes are significant. Some session laws focus on specific statutory changes involving an individual juvenile or family; other session laws make changes to state systems.

    Infant Safe Surrender: S.L. 2023-14, Section 6.2 significantly amends North Carolina’s infant safe surrender law for all infants who are safely surrendered on or after October 1, 2023. A new Article 5A has been added to G.S. Chapter 7B (the Juvenile Code) that enacts G.S. 7B-520 through -528 and G.S. 7B-1105.1 and amends G.S. 7B-501 (the previous infant safe surrender law) and other corresponding statutes. Under the new infant safe surrender law, infants who are reasonably believed to be no more than 30 days of age may be safely surrendered by a parent; previously the age limit was no more than 7 days of age. Only designated professionals may accept a safely surrendered infant. These are the same professionals in the previous version; however, the previous version allowed any person to accept a safely surrendered infant, and that is no longer authorized under the new law.

    The definition statute, G.S. 7B-101, adds to the defined terms “non-surrendering parent,” “safely surrendered infant,” and “surrendering parent” and amends the definition of “neglected juvenile” to explicitly state a juvenile is not abandoned when the juvenile is a safely surrendered infant. The identity of a surrendering parent must be kept confidential unless a statutory exception applies. A county department of social services (DSS) no longer treats a safely surrendered infant as a dependent juvenile but instead follows the new procedures set forth in the new Article 5A. Those procedures include publishing a notice of a safely surrendered infant within 14 days of receiving the safely surrendered infant; and identifying, locating, and contacting a known non-surrendering parent and placing the infant with the non-surrendering parent when there is no cause to suspect the infant is an abused, neglected, or dependent juvenile based on circumstances created by the non-surrendering parent. The rights of both the surrendering and non-surrendering parent are addressed. The North Carolina Department of Health and Human Services (DHHS) is required to create information about the rights of the surrendering and non-surrendering parent that is available for dissemination through its website in a printable and downloadable format and is translated in commonly spoken and read languages in the State.

    When a TPR involving the parents of a safely surrendered infant is commenced, there must be a preliminary hearing under new G.S. 7B-1105.1 within 10 days of the filing of the TPR petition. The hearing addresses the circumstances of the infant’s safe surrender, the identities (if known) of the respondent parents, and the method of notifying and serving the respondent parents, which includes notice by publication containing statements required by G.S. 7B-1105.1. The TPR grounds statute at G.S. 7B-1111(a)(9) authorizes the termination of a parent’s parental rights when there has been a prior TPR for another child of the parent and the parent is unable or unwilling to establish a safe home for the juvenile who is the subject of the current TPR. The statute is amended to explicitly state a prior TPR for a safely surrendered infant does not apply to this ground.

    There is more to say about the amendments made to the infant safe surrender law. I have written a bulletin explaining in detail these changes; that bulletin will be available in the next few weeks here.

    Non-discrimination in Placement of a Child: Effective May 16, 2023, S.L. 2023-14, Section 6.5, amends G.S. 48-3-203 (an adoption statute for agency placement of a child) and 131D-10.1 (the Foster Care Children’s Bill of Rights) to add a new subsection (a1) to each statute. Under the new subsection (a1), an agency cannot deny or delay the opportunity for an individual to become a foster or adoptive parent or the placement of a child for adoption or foster care because of the race, color, or national original of the individual or the child involved. These amendments essentially incorporate the federal Multiethnic Placement Act (MEPA) anti-discrimination provisions into state law. For more information about MEPA, see Chapter 13.3 of the Abuse, Neglect, Dependency – TPR Manual here.

    Foster Care Rates and Licensing: S.L. 2023-14, Section 6.7 increases the monthly foster care and adoption assistance rates effective July 1, 2023. For children 0-5 years old, the rates increase to $702 (from $514). For children 6-12 years old, the rates increase to $742 (from $654). For children 13-17 years old (inclusive) and young adults participating in Foster Care 18-21, the rates increase to $810 (from $698). Foster care and adoption assistance rates are codified at G.S. 108A-49.1.

    S.L. 2023-82 enacts G.S. 131D-10.2C, which addresses the number of children that may be placed in a family foster home at any time. The law incorporates many provisions in 10A N.C.A.C. 70E.1001. The maximum number of children is five and includes the foster parent’s own children, children placed in foster care, any children residing in the home, and any children who are receiving in-home day care or are being babysat. There are two exceptions that relate to placing siblings together. First, a family foster home may exceed this limit if written documentation is submitted to the foster home’s licensing authority that siblings are placed together, and all other licensure requirements are met. In that case, each sibling’s family services agreement must state that the siblings are placed together and address the foster parents’ skills, stamina, and ability to care for the children. Second, a family foster home may exceed the limit if the home would qualify for placement of one child or siblings but for the maximum number of children in the home, and written documentation is submitted to the licensing authority that siblings are placed together. Each sibling’s family services agreement must state that the siblings are placed together. This new law is effective October 1, 2023, unless an amended state plan must be submitted by DHHS to the U.S. Department of Health and Human Services for approval to maintain federal funding for foster care maintenance payments. In that case, the law is effective when U.S. DHHS approves the amended state plan.

    Placement with a Relative (Kinship Care) Payment and Licensing: Both state and federal law have been amended to address licensing and payment for relatives who are a court-ordered placement for a juvenile who has been adjudicated abused, neglected, or dependent.

    By November 16, 2023, S.L. 2023-14, Section 6.6 requires the Division of Social Services at DHHS (Division) to develop and implement a policy that allows a relative (related by blood, marriage or adoption) of a juvenile who is providing foster care to receive half the reimbursement rate of a licensed family foster home. The monthly rates of an unlicensed relative placement are $351 for a child 0-5 years old, $371 for a child 6-12 years old, and $405 for a child 13-17 years old (inclusive). The state and county share 50% of the nonfederal share of the costs. For the state share, $5,766,390 in recurring funds has been appropriated to the Division for the 2023-25 biennium.

    Effective November 27, 2023, 88 Federal Register 66700 (September 28, 2023) amends the definition of “foster family home” at 45 C.F.R. 1355.20(a) for the purposes of Title IV-E eligibility to allow for states to establish a set of licensing requirements and approval standards for relative foster family homes that are different from the standards that are used to license and approve non-relative foster family homes.  A relative foster home licensed with the lower standards must receive the same payment as a licensed non-relative foster home (amended 45 C.F.R. 1356.21(m)(1)). This provision will only apply if North Carolina DHHS chooses to participate. My colleague, Timothy Heinle, blogged about this change when it was proposed, which you can read here.

    DHHS Rapid Response Team: Effective June 29, 2023, S.L. 2023-65, Section 3.4 amends G.S. 122C-142.2(g) to add the Division of Child and Family Well-Being to the DHHS Rapid Response Team. Under G.S. 122C-142.2(f) and (g), one of the duties of the Rapid Response Team is to work with a county DSS, hospital, and LME-MCO or prepaid health plan to coordinate a plan for a juvenile who is in DSS custody, presented to a hospital emergency department for mental health treatment but does not need hospitalization, and for whom an appropriate placement is not available.

    Transportation of High-Risk Juveniles: Section 9J.13 of the 2023 Appropriations Act, S.L. 2023-134, enacts G.S. 7B-905.2, which addresses the transportation of juveniles in DSS custody with serious emotional mental, or behavioral disturbances that pose a risk of harm to self or others and who reside outside of a residential placement because of those disturbances. These juveniles are defined as “high-risk juveniles” at G.S. 7B-905.2(a)(1). DSS may make a written request to or enter into a transportation agreement with a “high-risk juvenile transporter” to transport the juvenile. A high-risk juvenile transporter is a law enforcement agency, the Division of Juvenile Justice of the Department of Public Safety (DJJ), or the Department of Adult Corrections (DAC). G.S. 7B-905.2(a)(2). If the high-risk juvenile transporter agrees, transportation must be provided in the county where the juvenile resides but is not limited to that county. The cost and expenses of transportation are the responsibility of the county DSS with custody of the high-risk juvenile. The high-risk juvenile transporter may use reasonable force and reasonable restraints (determined by the high-risk juvenile transporter) to restrain the high-risk juvenile if necessary to protect the transporter or others. The high-risk juvenile transporter is immune from criminal or civil liability when taking reasonable measures under this statute so long as the transporter was acting in good faith and did not engage in gross negligence, wanton conduct, or intentional wrongdoing. This law is retroactive to July 1, 2023.

    Use of Special State Reserve Funding for Transporting Homeless and Foster Students: Section 7.30 of the 2023 Appropriations Act, S.L. 2023-134, enacts G.S. 115C-250.5. This new law creates a “Transportation Reserve Fund for Homeless and Foster Students” to cover extraordinary costs for the transportation of homeless students and students in foster care that local school administrative units and charter schools may apply for from the Department of Public Instruction (DPI). DPI must establish eligibility guidelines that look to total prior-year expenditures for students who are homeless or in foster care. Award maximums are for 50% of the extraordinary transportation costs. Under federal laws, a juvenile who is in DSS custody and is removed from their home or foster care/relative placement is entitled to remain in the school they were attending prior to a change in their placement when it is in the best interests of a juvenile. For more information about these federal laws, specifically the Every Student Succeeds Act (ESSA), see Chapter 13.7 of the Abuse, Neglect, Dependency – TPR Manual here.

    Remove Appeal by Right because of a Dissent: Section 16.21.(d) of the 2023 Appropriations Act, S.L. 2023-134, amends G.S. 7A-30 to remove an appeal by right to the North Carolina Supreme Court from any opinion of the Court of Appeals where there is a dissent. This section is effective for appeals filed with the Court of Appeals on or after October 3, 2023.

    Mandatory Reporting to Law Enforcement Juvenile Victims of Certain Crimes: Effective October 3, 2023, Section 9L.1 of the 2023 Appropriations Act, S.L. 2023-134, amends G.S. 14-318.6(h) to exempt psychiatrists from reporting to law enforcement when juveniles (including adults who were juveniles at the time of the criminal offense) are victims of certain specified crimes designated in G.S. 14-318.6. Licensed family and marriage counselors are also exempt from the reporting requirements as related to the primary client (the person who contracted with the therapist for professional services for diagnosis and treatment) only and not other family members. For more information about this universal mandatory reporting law, see my previous blog post here.

    Medicaid and Children in Foster Care: Effective October 3, 2023, Section 9E.21 of the 2023 Appropriations Act, S.L. 2023-134, requires the Division of Health Benefits (DHB) at DHHS to convene a workgroup of designated entities to identify innovative Medicaid service options that would address gaps in medical care for children who receive foster care services. The Medicaid services must be trauma informed and evidence-based. Within three months of the workgroup’s completion, DHB must start to distribute funding to LME/MCOs and prepaid health plans for the use of the identified innovation Medicaid service options. DHHS must provide training (or delegate the training to an LME/MCO) to all county DSSs and offer training to tribal welfare offices on the Medicaid services that are funded under this section.

    Also effective October 3, 2023, Section 9E.22 of the 2023 Appropriations Act, S.L. 2023-134, requires DHHS to issue a request for proposals for a single statewide children and families (CAF) specialty plan contract by December 1, 2024. Specific provisions of the plan are governed by new G.S. 108D-1(5a); 108D-24; 108A-62; and 122C-115.7.

    Foster Care Trauma-Informed Assessment: Section 9J.12 of the 2023 Appropriations Act, S.L. 2023-134, requires the Division of Social Services of DHHS to work in partnership with specified divisions within DHHS, prepaid health plans and primary care case management entities that service children at risk of or currently placed in foster care, county DSSs, Benchmarks, individuals with lived experiences, and others who are identified by the partnership to develop a trauma informed assessment for children who are at risk of entering or are currently placed in foster care, and because of their trauma are at a higher risk of needing behavioral health or other services. A final assessment, standardized training curriculum and methodology, vendor, and a plan for a statewide rollout must be completed by September 30, 2024. Using a phased-in approach, the first assessments must begin on October 1, 2024 and be statewide by September 30, 2025. DSS must refer juveniles who have been determined to be abused or neglected for an assessment within 5 working days of the determination. Juveniles, ages 4 – 17, who are in foster care must receive a standardized assessment within 10 working days of a referral. Juveniles included in the Medicaid CAF specialty plan must receive a standardized assessment. DHHS must create a Division of Social Services Statewide Dashboard that is updated monthly and includes specified data regarding the implementation of the standardized assessments.

    DSS Social Worker Training: Effective June 29, 2023, S.L. 2023-65, Section 7.4 adds G.S. 131D-10.6A(c)(2) to allow DHHS to provide a full or partial exception to the required 72 hours of preservice training for a child welfare services worker when that worker has prior child welfare work experience in another state and completed an equivalent child welfare training.

    Juvenile Court Certification for District Court Judges: Effective July 21, 2023, S.L. 2023-103, Section 7 amends G.S. 7A-147(c) to require that the training district court judges must complete for juvenile court certification includes a trauma informed topic that addresses adverse childhood experiences and adverse community environments. For district court judges interested in juvenile court certification, the current the mandatory child development course offered by the School of Government addresses this requirement, and the Mental Health Issues in Juvenile Law course offered by the School of Government for the advanced child welfare and/or juvenile justice certifications does as well.

    Child Fatality Task Force: Two session laws make amendments to the Child Fatality Task Force. S.L. 2023-65, Sections 3.1 and 3.2 change the membership of the Task Force to replace the director of the Division of Mental Health, Developmental Disabilities, and Substance Use Services with the director of the Division of Child and Family Well-Being.

    Section 9.H15 of the 2023 Appropriations Act, S.L. 2023-134, enacts G.S. 143B-150.25 through -150.27 effective October 3, 2023. This section of the Appropriations Act creates a State Office of Child Fatality Prevention within DHHS, Division of Public Health. The State Office is the lead agency for the State Child Fatality Prevention System and its powers and duties are specified in G.S. 143B-150.27. The State Child Fatality Prevention System consists of local teams that review child fatalities under Article 14 of G.S. Chapter 7B, the North Carolina Child Fatality Task Force created in G.S. 7B-1402, the State Office established by this new law, and the medical examiner child fatality staff. The intent in creating a State Office is to restructure North Carolina’s Child Fatality Prevention System by July 1, 2025 so that the state system is centralized, reduces redundancy, maximizes the data and information of child fatality reviews, and strengthens the system’s effectiveness. Corresponding amendments are made to Article 14 of G.S. Chapter 7B. Effective January 1, 2025, a new G.S. 108A-15.20 creates “citizen review panels” that comply with the federal Child Abuse Prevention and Treatment Act (CAPTA) and will evaluate the extent that the State is fulfilling its child protection responsibilities under the CAPTA state plan. Citizen review panels may review child fatalities and near child fatality cases.

    Stay Updated: There are more bills that are pending that make additional changes to the Juvenile Code. Some of you have been following S625, which if passed will make significant amendments to the Juvenile Code. That bill is currently in the House and has not passed as of the date of this blog. Be sure to stay informed. If and when more changes become law, I will blog about them.

^ Back to Top