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. Continue Reading
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U.S. Supreme Court Holds the Indian Child Welfare Act Is Constitutional
The Indian Child Welfare Act (ICWA) was enacted by Congress in 1978 and applies to designated “child custody proceedings” that involve an “Indian child.” An Indian child is a person who is under 18 years old and is either (1) a member of a federally recognized Indian tribe or (2) eligible for membership in a federally recognized Indian tribe and a biological child of a member of a federally recognized Indian tribe. 25 U.S.C. 1903(4). There are four types of child custody proceedings that are governed by ICWA: (1) foster care placements, (2) preadoptive placements, (3) termination of parental rights (TPR), and (4) adoptions.
The purpose of ICWA is to set minimal federal standards for four types of child custody proceedings that involve the removal and placement of Indian children. Through ICWA, Congress sought to address “an alarmingly high percentage of Indian families that are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” 25 U.S.C. 1901(4). ICWA encompasses a national policy of protecting the best interests of Indian children and promoting the stability and security of Indian tribes and families. 25 U.S.C. 1902. ICWA has many provisions that apply to abuse, neglect, dependency; TPR; guardianship of minors; and adoptions of minors (including stepparent adoptions) when an Indian child is involved. (For more information about ICWA and its requirements, see Chapter 13, section 13.2 of the A/N/D-TPR Manual here.)
In 2019, ICWA was challenged as and held to be unconstitutional because it exceeded federal authority, infringed on state sovereignty, and discriminated on race. That federal district court opinion was appealed and ultimately heard by the U.S. Supreme Court. Last Thursday, in a 7-2 opinion, the U.S. Supreme Court rejected every challenge made by the petitioners in Haaland v. Brackeen, 599 U.S. ___ (2023) and held that ICWA is constitutional. This opinion has two concurrences and two dissents, all of which are discussed below. Continue Reading
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Proposed Federal Rule Change Seeks to Increase Support for Relative and Nonrelative Kinship Foster Placements
**UPDATED 11/10/2023** The rule changes discussed in this post were finalized and adopted on September 28, 2023 and are effective November 27, 2023. As my colleague Sara DePasquale noted in her post summarizing 2023 child welfare legislative updates, 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.”
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The federal Administration for Children and Families (ACF) is proposing regulatory changes that could have a significant impact on the placement of children removed from their parents due to suspected abuse, neglect, or dependency. This post discusses the proposed changes and the reasons supporting them and highlights the importance of relatives and nonrelative kin in juvenile abuse, neglect, dependency (A/N/D) proceedings.
(Note that while the proposal refers generally to Title IV-E agencies, this post refers specifically to the Department of Social Services (DSS), the petitioner in North Carolina A/N/D matters. Additionally, this post cites to the ACF’s proposal but omits internal citations within the proposal. See the proposal if you are interested in the research and other sources cited to by the ACF.)
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Update: Specific Personal Jurisdiction at the U.S. Supreme Court and the N.C. Court of Appeals
Personal jurisdiction, as the name implies, refers to the authority of a court over a particular person. In order for a court to have authority over someone in a civil case, three things must exist: (1) effective service of process, (2) a statute allowing the exercise of personal jurisdiction in the case (G.S. 1-75.4, North Carolina’s long-arm statute, is the relevant statute in our state), and (3) compliance with the due process clause of the federal constitution. Continue Reading
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School of Government seeks new faculty member to specialize in civil trials and contested hearings
The UNC School of Government seeks to hire a tenure-track faculty member who will specialize in the procedural law that governs civil court actions and the practical aspects of conducting civil trials and contested hearings. Public officials, rather than degree-seeking students, are the principal audience for the School’s work. This position will be responsible for educating judicial officials (including judges, magistrates, and clerks of court), other court system actors, and state public officials on the law of North Carolina related to civil trials and contested hearings, including, for example, the Rules of Civil Procedure, the Rules of Evidence, contempt, recusal and judicial immunity, attorney fees, execution and other post-judgment process, and appellate procedure.
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Learning Together To “Get It Right”
**This post was written by Elizabeth Watkins Price, Associate Director of Curriculum and Administration, The North Carolina Judicial College, UNC Chapel Hill School of Government
Since its founding in 2005, the mission of the Judicial College has been to provide “education and training to judicial branch personnel to develop the abilities and values necessary to provide justice.” In the nearly four years that I have been in my role, I’ve consistently encountered a similar dedication to learning and fairness expressed by our clients: the judges, magistrates, clerks, and other court officials of North Carolina. The great news is that the individuals who make up our judiciary are working hard to do incredibly complicated and difficult jobs, and they want to “get it right.” So, when we zoom out and see that the system we’re working in has a disparate impact on different communities, it can be hard to understand how our best efforts aren’t adding up to the creation of the fair and just system we all want to be a part of.
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All Related Charges Are Transferred When One Felony in a Delinquency Case Is Transferred
I continue to receive questions about transferring from juvenile to criminal superior court cases involving allegations that 16-and 17-year-olds have engaged in certain criminal conduct. Recently I’ve been asked about the transfer process for offenses committed at ages 16 and 17 in cases that involve a series of charges that include Class A – G felonies, Class H and I felonies, and misdemeanors. Because the Juvenile Code prescribes differing procedures for transferring various classes of felonies and there is no transfer process for misdemeanor offenses, confusion is understandable. The key to understanding how to handle these cases is this: Once one felony is transferred, all other related charges, regardless of offense class, are automatically brought under the jurisdiction of the superior court. Why? Continue Reading
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2019 Statutory Amendments to Adoption Laws
During the 2019 legislative session, various changes were made to the laws impacting adoptions in North Carolina. Last week, the North Carolina General Assembly passed a Joint Resolution (Resolution 2020-1) adjourning the long session of the 2019 Regular Session and designating the start of the short session as April 28, 2020. This post summarizes the amendments impacting adoption proceedings that were made during the long session, all of which are currently in effect. Continue Reading
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Juvenile Justice Changes in Federal Law
The Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) is the central federal law that establishes core requirements for state juvenile justice systems. 34 USC §111. In return for compliance with these core requirements, the statute authorizes federal funding for states to use in their juvenile justice systems. The JJDPA expired in 2007 and was recently reauthorized in the Juvenile Justice Reform Act of 2018. Public Law No 115-385. The reauthorized statute made several significant amendments to the JJDPA. In this blog post I will discuss three of the highlights: a new focus on evidence-based and promising programs and practices, changes in the disproportionate minority contact core requirement, and new requirements regarding identification and treatment of mental health and substance use disorders. Continue Reading
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Domestic Violence: Recent Changes to Chapter 50B
The North Carolina General Assembly recently made two important changes to Chapter 50B regarding civil domestic violence protective orders. S.L. 2017-92, “Domestic Violence Appeals and Modifications”, was effective October 1, 2017.