The new year brings Foster Care 18-21 to North Carolina. This is a new program that offers extended foster care to children who have aged out from foster care. Foster Care 18-21 was created by S.L. 2015-241, Section 12C.9 and became effective on January 1st. The North Carolina Division of Social Services provides additional information about this new program in its Child Welfare Services Policy Manual, Section 1201, XII (“NC DSS §1201, XII”). Continue Reading
This will be the last On the Civil Side blog post for 2016. We will be back on January 11, 2017. That gives you plenty of time to listen to Episode 4, “The Case Plan: In and Out of Court,” for our Beyond the Bench Season 2 podcast, available now!
This episode picks up where episode 3 ended. There’s been an adjudication of child neglect and an initial disposition order entered by the court. Now the family and department are engaged in case planning. The court is monitoring the progress and ultimately deciding what the final goals for the family are through periodic review and permanency planning hearings. Find out what’s involved both in and out of court. Continue Reading
In 1978, Congress enacted the Indian Child Welfare Act (ICWA). 25 U.S.C. §§ 1901 – 1963. Through ICWA, Congress declared
it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture….
25 U.S.C. § 1902.
For the first time since its passage, ICWA now has federal regulations that states must follow. 25 CFR Part 23. One of the purposes of these new regulations is to ensure the consistent application of ICWA protections across the states. 25 CFR 23.101. The regulations become effective on December 12th and apply to all “child custody proceedings” and “emergency proceedings” starting on or after that date. 25 CFR 23.103, 23.143. Continue Reading
Episode 2, “The System Responds”, for our Beyond the Bench Season 2 podcast is available now! This episode picks up where the last episode ended, with two different reports of suspected child neglect being made to a county child welfare agency. The reports are based on family homelessness and other issues that are occurring in the children’s homes.
This episode is organized into two parts.
- In Part One, you will learn about how the county department responds to reports of suspected neglect through the screening in/out process, what is involved in a department’s assessment of a report, and what safety planning looks like.
- In Part Two, you will learn about when court action is required, how it is started, and what is involved in obtaining an emergency order that removes the children from their homes.
Beyond the Bench
For those of you who aren’t in the know, earlier this year the School of Government’s Judicial College started a podcast, Beyond the Bench. A podcast is essentially a radio show that you can get on the internet, so you can listen any time you want. “Beyond the Bench” is about the North Carolina court system and features interviews with interesting people who work in the courts. Our first season was hosted by my colleague, Jeff Welty, and focused on criminal law.
Season Two: Homelessness, Neglect, and Child Welfare in North Carolina
I am the host of Season Two, which focuses on neglect and the child welfare system with a particular emphasis on homelessness. Through six episodes, you will hear about family homelessness in North Carolina, whether homelessness is neglect and requires a report to a county child welfare (or social services) department under North Carolina’s mandated reporting laws, and the different stages of a child welfare case. Each episode discusses a different stage in a child welfare case and includes the various voices and perspectives of the people involved. Those voices include homeless shelter staff, county department social workers and attorney, the children’s guardian ad litem, a parent attorney, and district court judges. Continue Reading
It’s September, which means that children have gone back to school. When the school year starts, most children know which school they are attending. But, a child who has been removed from his home and placed in foster care may not know which school he will be going to. Is it the old school? Is it a new school where the placement is located? If a child experiences multiple placements, does the child change schools each time the placement is in a different school district? Changing schools impacts children. That impact may be even more significant when a child is also experiencing a change in both her home environment and caretaker. As of December 12, 2016, a new federal education law goes into effect that prioritizes educational stability for children in foster care. But educational stability for a child in foster care is something that can be addressed now.
*This post was updated on August 1, 2016 to reflect the Session Law for H424.
The 2016 Appropriations Act (S.L. 2016-94) addresses more than the State’s budget. Section 12.C makes substantive changes to the General Statutes in Chapter 7B that govern abuse, neglect, or dependency proceedings. The statutory amendments became effective on July 1st. In addition, S.L. 2016-115 (H424), creates a new criminal statute, “The Unlawful Transfer of Custody of a Minor Child,” and is effective for offenses committed on or after December 1, 2016. The law also amends the definition of a neglected juvenile in G.S. Chapter 7B. Continue Reading
The county department of social services (DSS) receives a report that a 65-year old woman, Mary, was injured by a family member who repeatedly hit her during a dispute that took place at Mary’s home. Mary lives with her adult daughter, Patricia, and son-in-law, Frank. The report includes a statement that Mary has been recently diagnosed with dementia and has not left the house in more than a month. After finding the necessary allegations to screen the report in as an adult protective services (APS) report, the case is assigned to an APS caseworker who commences an evaluation to investigate the report further and determine whether Mary is a disabled adult subject to abuse, neglect, or exploitation and in need of protective services. See G.S. 108A-103.
When the caseworker goes to visit Mary as part of the evaluation, Frank refuses to allow her in the home. The caseworker returns multiple times and each time is denied entry and access to Mary. The caseworker determines that it is not possible to complete the evaluation without meeting with Mary. Is there anything that she can do to gain access to the home and thus to Mary? Continue Reading
This Sunday is Father’s Day, a day that celebrates fathers. It’s the perfect time to announce my new book, Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases. The book recognizes the role of fathers in abuse, neglect, or dependency cases. Put simply, they have a role. Fathers are necessary parties to the court proceeding. See G.S. 7B-401.1(b). Fathers impact a child’s placement, visitation, and permanent plan.
Unfortunately, every child does not have a father who has been identified by a marital presumption, acknowledgment, or judicial determination of paternity. Even when a father has been identified, his paternity has not necessarily been established, which allows for it to be challenged. The uncertainty in knowing who a child’s father may or may not be has resulted in cases where no father is named or the wrong man is named as a respondent father in the court action. Continue Reading
I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:
- the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
- the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.
The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other. Continue Reading
Before On the Civil Side existed, the story about NFL running back, Adrian Peterson, pleading no contest to a misdemeanor reckless assault charge for disciplining his 4-year old son with a switch was national news. I wrote about what I thought would happen to him here in NC for our Criminal Law Blog: Parental Discipline: When Is It Abuse and/or a Crime? Since I wrote that post, the NC Court of Appeals published its first opinions interpreting the definition of abuse as applied to a child protective case that says:
a child is abused when his or her parent, guardian, custodian, or caretaker uses or allows to be used cruel or grossly inappropriate procedures or devices to modify the child’s behavior.
In other words, a child is abused when parental discipline goes too far. How does a court determine whether a parent has gone too far? Continue Reading
With April recognized as Child Abuse Prevention Month, it seemed fitting to write about North Carolina’s Responsible Individuals List (RIL). If you’re thinking “I’m a responsible person; I should be on that list,” you should know what makes a person a “responsible individual” for purposes of placement on the RIL. The definition is somewhat counterintuitive; a “responsible individual” is a parent, guardian, custodian or caretaker who has abused or seriously neglected a child. G.S. 7B-101(18a). If you are identified as a “responsible individual,” your name will be added to the statewide RIL, which is maintained by the North Carolina Department of Health and Human Services. G.S. 7B-311(b). Continue Reading
After receiving a report and finding a need for protective services, the county department of social services (DSS) requests the DSS attorney file a petition with the court to adjudicate Jane Doe an incompetent adult under G.S Chapter 35A. The matter is heard by the clerk of superior court. DSS, as the petitioner, has the burden of proof. Through the presentation of testimony and other evidence at the hearing, including a multidisciplinary evaluation ordered by the clerk and prepared by DSS, the clerk determines that there is clear, cogent and convincing evidence that Jane is incompetent and that her best interests will be served by appointing DSS as her guardian of the person. Continue Reading
For the last 15 years, there has been an increased awareness of human trafficking in the U.S. That awareness has resulted in various federal and state laws seeking both to prevent human trafficking and protect the victims of human trafficking. See Trafficking Victims and Protection Act of 2000, 22 U.S.A. Chapter 78 (reauthorized in 2003, 2005, 2008, and 2013). Today’s post recognizes that January is National Slavery and Human Trafficking Prevention Month and discusses recent federal laws and accompanying state policy that focus on identifying and providing services to children who are in foster care and are victims of sex trafficking. Continue Reading
*For more information about this new law, see the following supplemental book chapter, Suspected Child Maltreatment Occurring in a Child Care Facility, to the book, Reporting Child Abuse and Neglect in North Carolina. Both the supplemental chapter and book are available electronically and for free.
It seems fitting that the first blog post of the 2016 calendar year addresses a new law that became effective on January 1st. S.L. 2015-123 is “An Act to Transition Abuse and Neglect Investigations in Child Care Facilities to the Division of Child Development and Early Education [DCDEE] within the Department of Health and Human Services” (DHHS). In a nutshell, county child welfare agencies (county departments) retain responsibility for screening and assessing reports of suspected child abuse, neglect, and dependency by a parent, guardian, custodian, or caretaker but are no longer responsible for screening and assessing reports of suspected abuse and neglect of a child in a child care facility. As a result, petitions filed in district court by a county department that allege a child has been abused or neglected will no longer be based on circumstances created in a child care facility. Instead, the DCDEE has assumed responsibility for investigating suspected child maltreatment occurring in a child care facility. These investigations are a component of NCDEE’s licensure procedures and requirements. S.L. 2015-123 sets forth the new process in Article 7 of G.S. Chapter 110.Continue Reading
- routine medical and dental care;
- emergency medical, surgical, or mental health care;
- testing and evaluation in exigent circumstances, and
- a Child Medical Evaluation (CME).
What about Medical Care that Is neither Routine nor an Emergency? Continue Reading
Through S.L. 2015-136, “An Act to Make Various Changes to the Juvenile Laws Pertaining to Abuse, Neglect, and Dependency,” the General Assembly enacted G.S. 7B-505.1 and G.S. 7B-903.1(e).These two new statutes address medical decision-making authority for a child who is placed in a county department’s custody through an order entered in an abuse, neglect, and dependency action. These new laws apply to all abuse, neglect, and dependency actions that were pending on or filed after October 1, 2015. Continue Reading
On October 1, 2015, several new statutes affecting abuse, neglect, and dependency cases went into effect. Three new statutes specifically address decision-making standards related to social and cultural activities for children who are placed in a county department’s custody because of abuse, neglect, or dependency. The new statutes were created by S.L. 2015-135 and are
- G.S. 131D-10.2A: Reasonable and Prudent Parent Standard,
- G.S. 7B-903.1: Juvenile Placed in Custody of Department of Social Services, and
- G.S. 48A-4: Certain Minors Competent to Contract.
A foster parent provides substitute care for a child who has been separated from his or her family because of abuse, neglect or dependency. G.S. 131D-10.2(9a);10A NCAC 70B.0101. When a parent, relative, guardian, or custodian is unable to care for a child, a foster parent is a critical part of a county department’s plan for arranging for the child’s immediate and temporary safety. Foster parents are likely to have relevant information that will assist a court in determining what is in the child’s best interests. Foster parents may also be interested in adopting a child who has been placed in their care. Does a foster parent have a right to participate in the court proceeding?Continue Reading
If the juvenile court or county department intends to place a child in an abuse, neglect, and dependency (A/N/D) case with a parent who lives outside of North Carolina, does the Interstate Compact on the Placement of Children (ICPC) apply? Continue Reading
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? Continue Reading
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? Continue Reading
Spoiler Alert !! Effective June 2, 2015, amendments were made to G.S. 7B-504.
*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). Continue Reading
Although I work for Carolina, where basketball reigns supreme, it is not unheard of to meet a hockey fan. That’s me… a major hockey fan. And, if you’re like me and follow the NHL, you know that this hockey season has been marked by an outbreak of the mumps. But it’s not just hockey. If you’ve watched the news lately, you know there has also been a measles outbreak at Disneyland. These events remind us that communicable diseases spread quickly and can have devastating effects. Thankfully, we have vaccines for many of these highly contagious communicable diseases.