• Initial Removal of a Child from a Home Because of Suspected Abuse, Neglect, or Dependency, Amended G.S. 7B-504

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    Spoiler Alert !! Effective June 2, 2015, amendments were made to G.S. 7B-504.

    Report and Assessment

    In NC, an adult who suspects a child is abused, neglected, or dependent by a parent, guardian, custodian, or caretaker must make a report to the county department of social services (DSS) where the child lives or is found. G.S. 7B-301(a). DSS will determine if the report warrants an investigation. If an investigation is needed, DSS will assess whether abuse, neglect, or dependency has occurred and if a child must be immediately removed from the home in order to protect him or her. G.S. 7B-302(a), (c). If a child’s immediate removal is necessary, DSS must file an abuse, neglect, or dependency (A/N/D) petition in district court. G.S. 7B-302(d).

    Taking a Child into Temporary Custody, G.S. 7B-500, -501

    Drafting and filing an A/N/D petition takes time; time that may place the child in further danger. If a DSS worker or law enforcement officer believes a child is abused, neglected or dependent and would be injured or could not be taken into custody before obtaining a court order, the child may be taken into “temporary custody.” Temporary custody means to take physical custody of a child and provide for that child’s personal care and supervision.  Temporary custody may only last for a maximum of 12 hours unless any of those 12 hours falls on a Saturday, Sunday, or legal holiday; in that case, it may last up to 24 hours. If DSS decides to seek an order for nonsecure custody, it must obtain the nonsecure custody order from the district court before the 12 or 24 hour time period expires.

    Seeking Nonsecure Custody

    The district court does not have jurisdiction to order nonsecure custody until DSS files an A/N/D petition for that child. In re Ivey, 156 N.C. App. 398 (2003). When a child’s circumstances meet the required statutory criteria, DSS will make a request for nonsecure custody.

    A court may only order nonsecure custody if:

    1. there is a “reasonable factual basis to believe” the allegations in the petition are true,
    2. at least one of the following applies:
      • the child has been abandoned;
      • the child has suffered a physical injury or has been sexually abused;
      • the child is exposed to a substantial risk of physical injury or sexual abuse;
      • A parent, guardian, custodian, or caretaker is unwilling or unable to consent to medical treatment for the child, which would cure, alleviate, or prevent the child from suffering physical harm, such as death, disfigurement, or substantial impairment of bodily functions;
      • the parent, guardian, custodian, or caretaker consents; or
      • the child is a runaway who consents to the nonsecure custody order, and
    3. there is a “reasonable factual basis to believe” there are no other available reasonable  means to protect the child.

    G.S. 7B-503(a).

    If the court denies the request for nonsecure custody, DSS does not have authority to keep custody of the child. DSS must immediately return the child to his or her parent, guardian, custodian, or caretaker. In re O.S., 175 N.C. App. 745 (2006); In re Guarante, 109 N.C. App. 598 (1993).

    The Nonsecure Custody Order

    If the court determines the criteria for nonsecure custody are met, the court must issue an initial nonsecure custody order. G.S. 7B-503(a). This initial order is only effective for a maximum of 7 calendar days or 10 business days, if the child’s parent, guardian, custodian, or caretaker and the child’s guardian ad litem consent to the later time period. The time limitation is tied to the court holding the first continued nonsecure custody hearing, which cannot be waived. G.S. 7B-506(a).

    The initial order for nonsecure custody has several provisions, such as the grounds for its issuance and the child’s placement in nonsecure custody. One provision addresses how it will be executed.

    Executing a Nonsecure Custody Order and Fourth Amendment Implications, G.S. 7B-504

    The initial nonsecure custody order directs a law enforcement officer or authorized person to “take physical custody of the juvenile.” This removal may be considered a seizure, implicating a child’s Fourth Amendment right to be free from an unreasonable seizure. Words of Faith Fellowship, Inc. v. Rutherford County DSS, 329 F.Supp. 2d 675 (2004). In addition, if the child is not already in “temporary custody,” an officer or authorized person will need to remove the child who is designated in the order from the child’s home, school, daycare, etc. A person, including a child, has varying degrees of a reasonable expectation of privacy depending on the setting. Someone’s expectation of privacy is highest in his or her home. In re Stumbo, 357 N.C. 279 (2003).

    The Juvenile Code recognizes that both children and parents have constitutional rights. G.S. 7B-100(1). The Fourth Amendment restricts the government in civil as well as criminal matters and applies to both civil and criminal government authorities. New Jersey v. T.L.O., 105 S. Ct. 733 (1985).  Fourth Amendment restrictions apply to county DSS social workers investigating child abuse. Words of Faith, supra; In re Stumbo (Martin, J., concurring).

    Prior to June 2, 2015, G.S. 7B-504 failed to address a law enforcement officer’s or authorized representative’s authority to enter a private residence to take custody of the child named in the nonsecure custody order. Some officers believed a separate warrant was needed and returned to court to obtain a warrant in situations where entry into a home was denied.

    Effective June 2, 2015, S.L. 2015-43 amended G.S. 7B-504 by explicitly allowing the court to “authorize a law enforcement officer to enter private property to take physical custody of the juvenile.” The court may also authorize a law enforcement officer to make a forcible entry at any hour if required by exigent circumstances. In order to authorize an officer’s entry into private property, the court must find a less intrusive remedy is not available, based upon either the allegations in the A/N/D petition and request for nonsecure custody or DSS’ testimony. The need to enter private property must, therefore, be addressed in the petition or at the time the request for nonsecure custody is made.

    The parent, custodian, guardian, or caretaker must be given a copy of the order by the person authorized to execute the nonsecure custody order. The law enforcement officer or authorized person must make due return of the order after it is executed.

    Although a nonsecure custody order is not a warrant, it is a court order that is based on a petition alleging specific facts regarding a child’s need for protection as a result of an environment or condition caused by the child’s parent, guardian, custodian, or caretaker. Execution of a nonsecure custody order has no criminal investigative purpose but rather has the purpose of protecting the child from further harm.

    The standard for the nonsecure custody order is a “reasonable factual basis to believe” and not probable cause. However, “the reasonable grounds standard accommodates the government’s noble efforts to reduce the incidence of child abuse and neglect without wholly abrogating the constitutional rights of children and caregivers.” In re Stumbo at 296 (Martin, J., concurring).

    The AOC Form, (AOC-J-150, Rev. 6/15)

    The AOC has revised the Order for Nonsecure Custody to reflect the new provisions of G.S. 7B-504.

    Page 1:

    AOC-ex-1

    Page 2:

    AOC-ex-2

    Sara DePasquale is an Assistant Professor at the School of Government specializing in child welfare (abuse, neglect, dependency, termination of parental rights, and adoption) and juvenile court.

    6 thoughts on “Initial Removal of a Child from a Home Because of Suspected Abuse, Neglect, or Dependency, Amended G.S. 7B-504”

    • Natarlin Best says:

      If I get a call from DSS at 12 midnight on a Saturday requesting a nonsecure custody order for a child who is in a home where both parents are shooting up heroin as we speak, will I need to file a petition when the Judge issues the order?

    • mm Sara DePasquale says:

      An A/N/D petition must be filed before or at the same time as the request for nonsecure custody is made. It is the petition and not the request for nonsecure custody that initiates an A/N/D proceeding. See G.s. 7B-405. If a nonsecure custody order is required during nonregular court hours, the magistrate takes the petition. Id. See also G.S. 7B-404(b) which refers to “…emergency situations when a petition is required in order to obtain a nonsecure custody order….”

      If there is an administrative order in your judicial district that authorizes the magistrate to issue the nonsecure custody order, the magistrate may do so. If a judicial district does not have an administrative order that delegates the authority to issue a nonsecure custody order to someone other than a judge, the magistrate must call a judge who will decide. This type of telephonic communication is authorized by G.S. 7B-508.

      In addition to subject matter jurisdiction, the court must look to the petition when deciding if a nonsecure custody order should be issued. One of the three required criteria for a nonsecure custody order is “there is a reasonable factual basis to believe the matters alleged in the petition are true.”

      The court of appeals has been clear in its holdings that the filing of a properly signed and verified petition is what starts the A/N/D proceeding and gives the district court subject matter jurisdiction. If a nonsecure custody order is issued before a petition has been filed, it is void ab initio.

    • Michael jackson says:

      In cases of no secured custody does the parent have rights to a trial by jury instead of a judge deciding the outcome? The specific case I’m talking about DSS has had children for over 7 days and there has not been any of this case heard in courts yet. There is reason to suspect conflict of interest with the accusing social worker. What, if anything can the accused parent do to get children back in their own home

    • Susann Cates says:

      Dss told my daughter they had to enter her home and did so without her consent. They removed the children even though the allegations were for the condition of her house, not for abuse or neglect. I(grandmother) took custody. Dss interviewed one child at school without my knowledge or consent. 4 weeks later a police officer visited the residence and said all repairs have been met. A week later dss said all repairs have been met. 2 drug tests came back negative. Dss keeps stalling with more requirements before allowing the children to be returned.

      • Tammy J Armstrong says:

        Hello Susan. My precious grandson Henry he is 8 years old was taken by CPS even though there was a safety plan signed with me and the social worker that my grandson was safe in my care,. My daughter took my grandson out of his school but the social worker did not retrieve my grandson and bring him back to me, she instead put him in foster care,. Horrible ! I really need help to get custody of my grandson and get him out of this nightmare.

    • Annette Case says:

      If a child is removed from the home due to neglect, on the nonsecure custody, does that mean she be placed in a foster home or does that mean a family member would be able to take custody of her?

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