The gravity of the events of recent weeks stemming from the highly publicized killings of several black citizens, including George Floyd, Ahmaud Arbery, Breonna Taylor, and Rayshard Brooks, has led for a call to acknowledge and respond to systemic racism in the United States. Initially, the focus was on the actions of the police, but the call to action has grown, asking Americans to address inequities based on race as a whole within our country. That begs the question, is race a factor in the child welfare system? The answer is yes. Continue Reading
These are not usual times for North Carolina, the U.S., or the world given the coronavirus (COVID-19) pandemic. In response to this pandemic, Chief Justice Beasley issued two Emergency Directives on Friday declaring that catastrophic conditions exist requiring changes to how the N.C. courts will operate. Yesterday, a clarifying memorandum was issued providing a “Coronavirus Update for Our Courts” (AOC Memo). These directives and other information may be accessed on the N.C. Judicial Branch website, which now has a page providing COVID-19 updates, here. This page also includes administrative orders issued by chief district court judges of judicial districts and how those individual districts are operating.
How does all this affect abuse, neglect, and/or dependency (A/N/D) court cases? A/N/D cases impact a parent’s paramount constitutional rights to care, custody, and control of their child. See Troxel v. Granville, 530 U.S. 57 (2000); Price v. Howard, 346 N.C. 68 (1997); In re R.R.N., 368 N.C. 167 (2015). Additionally, the Juvenile Code explicitly recognizes parents have constitutional rights that must be protected in these proceedings. G.S. 7B-100(1), -802. Emergency Directive 1 (paragraph 2) states that proceedings that are necessary to preserve the right to due process of law should continue to be held. Although the examples listed involve criminal proceedings, those examples do not exclude A/N/D actions where parents’ and children’s due process rights are affected. Continue Reading
I am very excited to announce the availability of two new resources.
- Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina (2019), otherwise known as “the A/N/D Manual” or “the Manual.”
If you were at the School of Government earlier today, you would have heard and seen me running down the hallway, exclaiming “it’s out, it’s out!” The 2019 edition of the A/N/D Manual is available on the SOG website, here, and it replaces the 2017 edition. This new 2019 edition is current through December 31, 2019 and incorporates opinions issued by the North Carolina appellate courts (most of which are published) through that date as well as legislative changes made through the completion of the 2019 legislative changes (which ended in January 2020).Continue Reading
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
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.
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
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
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
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
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