Articles in the Child Welfare Law category - Page 10 of 12

Today is my birthday (for those of you who are wondering, 46). It is my absolutely favorite day of the year. It’s not because of presents or the fact that I can easily justify why I should be the center of attention for the day (yes, I am a Leo). It’s because every year, on August 12th, I know no matter what my sister, my brother, and my mother will call me. It’s not a text; it’s not an email; it’s an actual phone call, with a real conversation. I can count on that predictability. Knowing I’m going to talk to each of them makes me really happy. My mother will call first; my sister will sing me some happy birthday jingle she made up, and my brother will wish me a happy birthday while asking how I’m going to celebrate and what else is happening in my life.

As my birthday approached this year, I found myself thinking about children in foster care and their birthdays. Is there any predictability? Is there a family visit? Are there phone calls? Is the day even acknowledged? I searched the relevant statutes, regulations, and state’s policy manuals, and I couldn’t find anything that addressed a child’s birthday (if there’s something out there that I missed, please let me know). But, the statutory, regulatory, and policy silence does not mean that the court order or the child’s case plan should also be silent.

*This post was updated on August 1, 2016 to reflect the Session Law for H424.

The 2016 Appropriations Act (S.L. 2016-94) addresses more than the State’s budget. Section 12.C makes substantive changes to the General Statutes in Chapter 7B that govern abuse, neglect, or dependency proceedings. The statutory amendments became effective on July 1st. In addition, S.L. 2016-115 (H424), creates a new criminal statute, “The Unlawful Transfer of Custody of a Minor Child,” and is effective for offenses committed on or after December 1, 2016. The law also amends the definition of a neglected juvenile in G.S. Chapter 7B. 

In May 2008 a kindergarten teacher in a small town in Georgia was accused of sexually molesting three children. As a result, she was criminally charged, and she lost custody of her son and daughter. For two years, she was not allowed any contact with her daughter, one of the alleged victims.

Tonya Craft, the accused teacher, shared her story during a session for investigators at the May 2016 spring public defender and investigator conference. Her presentation focused on the importance of client-centered investigation and representation. As I listened to her story about her criminal case, I heard valuable lessons that I think are relevant for attorneys representing parents in abuse, neglect, and dependency proceedings.

This Sunday is Father’s Day, a day that celebrates fathers. It’s the perfect time to announce my new book, Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases. The book recognizes the role of fathers in abuse, neglect, or dependency cases.  Put simply, they have a role. Fathers are necessary parties to the court proceeding. See G.S. 7B-401.1(b). Fathers impact a child’s placement, visitation, and permanent plan.

Unfortunately, every child does not have a father who has been identified by a marital presumption, acknowledgment, or judicial determination of paternity. Even when a father has been identified, his paternity has not necessarily been established, which allows for it to be challenged. The uncertainty in knowing who a child’s father may or may not be has resulted in cases where no father is named or the wrong man is named as a respondent father in the court action. 

I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:

1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
2. the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.

The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other.

Before On the Civil Side existed, the story about NFL running back, Adrian Peterson, pleading no contest to a misdemeanor reckless assault charge for disciplining his 4-year old son with a switch was national news. I wrote about what I thought would happen to him here in NC for our Criminal Law Blog: Parental Discipline: When Is It Abuse and/or a Crime? Since I wrote that post, the NC Court of Appeals published its first opinions interpreting the definition of abuse as applied to a child protective case that says:

a child is abused when his or her parent, guardian, custodian, or caretaker uses or allows to be used cruel or grossly inappropriate procedures or devices to modify the child’s behavior.

G.S. 7B-101(1)c.

In other words, a child is abused when parental discipline goes too far.  How does a court determine whether a parent has gone too far?

With April recognized as Child Abuse Prevention Month, it seemed fitting to write about North Carolina’s Responsible Individuals List (RIL). If you’re thinking “I’m a responsible person; I should be on that list,” you should know what makes a person a “responsible individual” for purposes of placement on the RIL. The definition is somewhat counterintuitive; a “responsible individual” is a parent, guardian, custodian or caretaker who has abused or seriously neglected a child. G.S. 7B-101(18a). If you are identified as a “responsible individual,” your name will be added to the statewide RIL, which is maintained by the North Carolina Department of Health and Human Services. G.S. 7B-311(b).

*This post was updated on 10/24/16 to add citations for district court jurisdiction of paternity actions

Earlier this month, my colleague, Meredith Smith, posted about Intestate Succession Rights and Children Born Out of Wedlock. Her post was prompted by In re Estate of Williams, ___ N.C. App. ___ (March 1, 2016), which addressed the application of G.S. 29-19(b) when determining whether the decedent’s child was an heir entitled to intestate succession. What caught my attention in the opinion were excerpts from both the orders of the clerk and the superior court  that referred to the process of legitimating a child pursuant to G.S. 29-19(b)(1) and (3). However, G.S. 29-19(b) addresses paternity, not legitimation. Legitimation for purposes of intestate succession is addressed in G.S. 29-18 (father and mother) and G.S. 29-19(a) (mother). So what is the difference?

Sara DePasquale wrote a blog on the Role of a Foster Parent in the A/N/D Court Action, which prompted me to explore the role of non-parents, and specifically their right to representation.

Prior to the filing of an abuse, neglect and dependency (A/N/D) petition, the child may be in the care of grandparents, other relatives or friends. They are providing support and maintenance and making daily decisions about the health and welfare of the child. This may be more permanent substitute care compared to the temporary care provided by a foster parent.

Once the petition is filed each parent named in the petition is appointed provisional counsel pursuant to G.S. 7B-602. But what about non-parents? The relative or friend who has custody of or is caring for the child may meet the statutory definition of “caretaker” or “custodian”. See G.S. 7B-101. Also, the child may have a court appointed guardian [G.S.7B-600; G.S. 35A-1202(7) & (10)] at the time the petition is filed. Does the caretaker, custodian or guardian have a right to court appointed counsel if they are indigent?

For the last 15 years, there has been an increased awareness of human trafficking in the U.S. That awareness has resulted in various federal and state laws seeking both to prevent human trafficking and protect the victims of human trafficking.  See Trafficking Victims and Protection Act of 2000, 22 U.S.A. Chapter 78 (reauthorized in 2003, 2005, 2008, and 2013).  Today’s post recognizes that January is National Slavery and Human Trafficking Prevention Month and discusses recent federal laws and accompanying state policy that focus on identifying and providing services to children who are in foster care and are victims of sex trafficking.