Archive

• The Indian Child Welfare Act: New Binding Federal Regulations You Need to Know About!

  This entry was contributed by Sara DePasquale on December 9, 2016 at 7:45 am and is filed under Child Welfare Law.

  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 12^th and apply to all “child custody proceedings” and “emergency proceedings” starting on or after that date. 25 CFR 23.103, 23.143. Continue Reading

• Check Out Episode 2, “The System Responds,” of Beyond the Bench Season 2

  This entry was contributed by Sara DePasquale on November 18, 2016 at 6:00 am and is filed under Child Welfare Law.

  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.

  Continue Reading

• Season Two of Beyond the Bench, “Homelessness, Neglect, and Child Welfare in North Carolina,” Launches This Week!

  This entry was contributed by Sara DePasquale on October 31, 2016 at 2:00 am and is filed under Child Welfare Law.

  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

• School Stability for Children in Foster Care

  This entry was contributed by Sara DePasquale on September 21, 2016 at 8:00 am and is filed under Child Welfare Law.

  *Since this post was originally published, NC DHHS Division of Social Services has enacted a policy to address the issue of educational stability for children in foster care, which you can access here (see section XIII).

  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.

  Continue Reading

• 2016 Legislative Changes Impacting Child Welfare

  This entry was contributed by Sara DePasquale on July 20, 2016 at 5:45 am and is filed under Child Welfare Law.

  *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

• Administrative Inspection Warrants in Adult Protective Services Cases

  This entry was contributed by Meredith Smith on June 29, 2016 at 2:21 pm and is filed under Guardianship.

  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

• New Book! Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases

  This entry was contributed by Sara DePasquale on June 17, 2016 at 5:00 am and is filed under Child Welfare Law.

  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

• Children in DSS Custody Who Need Treatment in a PRTF: There’s a Disconnect

  This entry was contributed by Sara DePasquale on June 1, 2016 at 5:00 am and is filed under Child Welfare Law.

  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:

  1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
  2. 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

• When Parental Discipline Goes Too Far, It’s Child Abuse

  This entry was contributed by Sara DePasquale on May 25, 2016 at 5:34 am and is filed under Child Welfare Law.

  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.

  G.S. 7B-101(1)c.

  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

• What Is the Responsible Individuals List and Why Is Someone on It?

  This entry was contributed by Sara DePasquale on April 27, 2016 at 1:57 pm and is filed under Child Welfare Law.

  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