Archive

• U.S. Supreme Court Holds the Indian Child Welfare Act Is Constitutional

  This entry was contributed by Sara DePasquale on June 20, 2023 at 4:10 pm and is filed under Child Welfare Law.

  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

• The Relationship Between Juvenile Abuse, Neglect, and Dependency, and the Responsible Individuals List

  This entry was contributed by Timothy Heinle on June 14, 2023 at 10:51 am and is filed under Child Welfare Law, Social Services.

  Imagine a Department of Social Services (DSS) receives a report alleging a juvenile was abused by her father. Following an investigation, DSS substantiates the report. At this point, does placing the father on the Responsible Individuals List (RIL) have anything to do with the decision to file (or not) a juvenile abuse, neglect, dependency (AND) petition? Let’s explore the interplay between these two actions.

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• The State of Post-Petition Evidence in A/N/D Adjudicatory Hearings

  This entry was contributed by Sara DePasquale on June 7, 2023 at 8:05 am and is filed under Child Welfare Law.

  An adjudicatory hearing in an abuse, neglect, or dependency action is “a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in the petition.” G.S. 7B-802. The conditions refer to whether the juvenile is abused, neglected, or dependent. Because of the statutory language of G.S. 7B-802, the general rule created by the appellate courts is that post-petition evidence is not considered at an adjudicatory hearing. However, the court of appeals has stated this rule is “not absolute.” In re V.B., 239 N.C. App. 340, 344 (2015). In the last several years, the court of appeals has carved out 3 exceptions to the rule that allow for post-petition evidence: (1) a neglect adjudication when there is a long period of separation between the child and parent before the petition is filed, (2) dependency adjudications, and (3) evidence of fixed and ongoing circumstances, such as paternity and mental illness. In November 2022, the North Carolina Supreme Court in In re L.N.H., 382 N.C. 536 (2022) addressed one of those exceptions, the dependency adjudication exception, and determined the court of appeals exception was error. So, what is the rule regarding post-petition evidence? It’s a little murky now. Continue Reading

• Proposed Federal Rule Change Seeks to Increase Support for Relative and Nonrelative Kinship Foster Placements

  This entry was contributed by Timothy Heinle on March 23, 2023 at 10:05 am and is filed under Child Welfare Law, Social Services.

  **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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• Human Trafficking: New SOG Resource Explaining Your Obligation to Make a Report and How the Agency Responds

  This entry was contributed by Sara DePasquale on January 18, 2023 at 9:45 am and is filed under Social Services.

  January recognizes the importance of knowing about human trafficking. The President has declared January Human Trafficking Prevention Month (see the proclamation here). The North Carolina Governor and the Chief Justice have both declared January Human Trafficking Awareness Month (see the Governor’s proclamation here and the Chief Justice’s proclamation here). The purpose of these declarations is both a recognition that human trafficking in the United States and North Carolina exists and to educate our citizens about this issue. Partnerships are required for a successful response to combat the crime of human trafficking, which involves both sex and labor trafficking. The national, state, and local responses involve the prevention of human trafficking, protection for victims and survivors, and the prosecution of traffickers.

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• You are on Notice: Pleading Requirements, a Recent N.C. Supreme Court Opinion, and Parent Representation

  This entry was contributed by Timothy Heinle on September 21, 2022 at 1:01 pm and is filed under Child Welfare Law.

  Consider an attorney who is appointed to represent an indigent parent in a juvenile abuse, neglect, and dependency (A/N/D) proceeding. The attorney reviews the petition which was prepared using form AOC-J-130. Perhaps only the box for neglect is marked but the written allegations mirror the statutory definition of abuse. Or perhaps no boxes are checked but the petition has a prior custody order attached to it. What grounds for adjudication are alleged here? Does it matter what boxes are checked or what portions of a petition are completed? Are magic words or statutory citations required? What if this was a termination of parental rights (TPR) petition where a statutory citation for an alleged ground was not included?

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• New Ethics Opinion on Dual Role GAL–Attorney Advocates in Juvenile Proceedings

  This entry was contributed by Timothy Heinle on August 17, 2022 at 10:45 am and is filed under Child Welfare Law, Juvenile Law, Social Services.

  This post was updated on September 6, 2022 in response to helpful reader feedback regarding the nuances that exist when determining whether there is a conflict of interest for a GAL program and, if so, the possible options available to cure that conflict. The amended portion can be found in the Conflicts of Interests section below. 

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• COVID and the Due Process Rights of Incarcerated Parents

  This entry was contributed by Timothy Heinle on June 16, 2022 at 12:38 pm and is filed under Child Welfare Law, Constitutional Issues.

   

  The ramifications of the COVID-19 pandemic on prisons and the court system have been wide-reaching. We are still seeing, and will likely continue to see, the tentacles of these issues stretch into cases for years to come. The North Carolina Supreme Court recently issued a decision tackling one such issue: whether a parent who was unable to attend a termination of parental rights hearing because he was incarcerated during a pandemic-related prison lockdown was entitled to a continuance so he could be present for the hearing. In re C.A.B., 2022-NCSC-51, ¶ 1.

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• Foster Care and Family Time – What about the Pets

  This entry was contributed by Sara DePasquale on June 1, 2022 at 9:22 am and is filed under Child Welfare Law.

  Meet Austria. She’s one of the loves of my life. We’ve been together for more than 10 ½ years. She has been a witness to my life during that time – loving me unconditionally, making me laugh daily, going on multiple daily walks as part of my own self-care, sleeping with me when I’m sick, comforting me when times are hard, vacationing with me (I’ve driven the I-95 corridor from Miami to Portland, Maine more times than I can count so she is with me during family visits), helping me transition to North Carolina, meeting friends, sharing bags of Doritos (my weakness when writing or driving), watching me leave and waiting for me to get home in her princess and the pea pile of dog beds in front of the window, and so much more. She is a joy. She is a dog of a lifetime. She is my family.

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• Updated Abuse, Neglect, Dependency – TPR Manual and “Candyland” Are Ready!

  This entry was contributed by Sara DePasquale on March 16, 2022 at 10:56 am and is filed under Child Welfare Law.

  It is with great joy and enthusiasm that I am announcing these two updated resources for those of you who work in the area of child welfare.

  1. Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina (Feb. 2022), otherwise known as “the A/N/D Manual” or “the Manual.”

  This February 2022 edition of the Manual is now available on the SOG website, here. This edition replaces the 2019 edition. As those of you who work in this area know, the law is constantly changing either because of legislative changes or appellate opinions interpreting the law. The pace of the changes applying to this legal area is reflected by the fact that this edition was supposed to be a 2021 edition but because of North Carolina Supreme Court opinions published on February 11, 2022, it became the February 2022 edition. This February 2022 edition is current through February 15, 2022 for both appellate opinions issued by the North Carolina appellate courts (most of which are published) as well as legislative changes made through that date. The changes are so significant that you should not rely on any earlier editions of the Manual.

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