Articles related to abuse - Page 2 of 2

This post was amended to reflect changes made to the definition of caretaker that occurred after the post was published by section 1 of S.L. 2015-123* (effective January 1, 2016) and Section 12C.1.(d). of S.L. 2016-94, effective July 1, 2016**  

In North Carolina, abuse, neglect, and dependency cases determine the child’s status as abused, neglected, or dependent by examining the child’s circumstances rather than determining the fault or culpability of a parent. In re Montgomery, 311 N.C. 101 (1984). In determining a child’s status, social services agencies and trial courts must look at the statutory definitions of abuse, neglect, and dependency. G.S. 7B-101(1), (15), (9). These definitions require the social services agencies and courts to determine who created the child’s circumstances. In abuse and neglect cases, was it the child’s parent, guardian, custodian, or caretaker? In dependency cases, was it the child’s parent, guardian, or custodian? If the child’s circumstances were not caused by a parent, guardian, custodian, or caretaker, the child is not abused, neglect, or dependent. A court order establishes the relationship of guardian [G.S. 7B-600; G.S. 35A-1202 & Article 6] or custodian [G.S. 7B-101(8)] to a child, but who is a caretaker?

Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services?

*Note this post has been amended to reflect the December 2015 recodification of the SCRA

Earlier posts address the SCRA in family law actions and non-judicial foreclosures. It’s my turn to address the SCRA’s application to abuse, neglect, dependency (A/N/D), and termination of parental rights (TPR) actions.

When and Why Does the SCRA Apply?

The SCRA applies to any judicial or administrative proceeding, except for criminal proceedings. 50 U.S.C. § 3912(b). There is no exception for A/N/D or TPR actions, which are “child custody’ proceedings. G.S. 50A-102(4). Child custody proceedings are specifically referenced in the SCRA. 50 U.S.C. § 3931(a) and -3932(a).

The district court has exclusive, original jurisdiction over all abuse, neglect, and dependency (A/N/D) proceedings. When a court obtains that jurisdiction after an A/N/D petition has been filed by a county department of social services (DSS), “any other civil action in this State in which the custody of the juvenile is an issue is automatically stayed as to that issue, unless the juvenile proceeding and the civil custody action or claim are consolidated … or the court in the juvenile proceeding enters an order dissolving the stay.” G.S. 7B-200(c)(1).

What does this mean?