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 Individual’s 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.
The RIL in a nutshell
For the uninitiated, my colleague, Sara DePasquale, previously published a post, What Is the Responsible Individuals List and Why Is Someone on It? The quick version goes like this: the RIL is a (mostly) confidential database maintained by North Carolina Department of Health and Human Services. G.S. 7B-311(b). The database contains information on parents, guardians, custodians, and caretakers who have been determined by DSS to have abused or seriously neglected a child. G.S. 7B-101(18b). An individual is entitled to both notice and judicial review of the determination by DSS to place that person on the RIL. G.S. 7B-320(a); see also G.S. 7B-323. Qualifying individuals may be placed on the RIL if the person (i) does not timely file a petition for judicial review after receiving notice of the DSS determination, (ii) files a petition for judicial review and, following a hearing in district court, the court finds by a preponderance of the evidence they are a responsible individual, or (iii) is convicted of criminal charges stemming from the same incident. G.S. 7B-311(b); see also G.S. 7B-323(a), (d); 7B-324.
DSS, placement on the RIL, and juvenile AND
Separate but related proceedings. A DSS determination that a person should be placed on the RIL has no formal bearing on their decision whether to file an AND petition. They are separate processes. DSS makes its decisions with both in mind, as there is natural overlap between the RIL and AND, including the allegations, subsequent investigations, and supporting evidence. Why, in some cases, does DSS proceed with only RIL placement or only an AND petition, or both simultaneously?
Discretion. “Any individual that is substantiated for abuse and/or serious neglect as the result of an investigative assessment must be placed on the RIL.” NCDHHS Child Welfare Manual, CPS Family and Investigative Assessments, p 81 (emphasis added); see also G.S. 7B-311(b) (requiring that if all conditions are met, the responsible individual’s name be added to the RIL). DSS has more discretion in the AND arena, where it has the choice whether to file a petition alleging abuse, neglect, or dependency (except in cases where a petition is required because immediate removal seems necessary for the protection of the juvenile or where the respondent refuses to accept protective services following an assessment or investigation). G.S. 7B-302(c), (d).
Evidence. DSS may decide to place an individual on the RIL without filing an AND petition because of the different burdens of proof and evidentiary showings required for each. AND petitions must be proven by clear and convincing evidence, whereas the burden on DSS is the lower preponderance of the evidence standard at an RIL judicial review. G.S. 7B-805, -323(b). Additionally, while the Rules of Evidence apply at both AND adjudications and RIL judicial reviews, courts overseeing RIL challenges have the discretion to “permit the admission of any reliable and relevant evidence…if the general purposes of the rules of evidence and the interests of justice will best be served by its admission.” G.S. 7B-323(b); see also G.S. 7B-804. DSS may conclude that it has the evidence necessary to meet its burden in an RIL judicial review but not the evidence necessary to prove an AND petition.
Use of time and resources. Consider a situation where DSS has determined that (i) a parent is responsible for their child’s abuse or serious neglect, necessitating placement on the RIL, and (ii) providing in-home services is sufficient without filing an AND petition. This combination of circumstances can have a few different outcomes. One possibility is that the responsible parent will not challenge the RIL placement, and the in-home services casework proceeds successfully. Sometimes, however, the parent will seek judicial review of the RIL determination. DSS may decide that if it must go to court and prove the allegations for the RIL, it’s more efficient to file an AND petition and get the benefit of court oversight rather than waiting to see how things go with in-home services. Another potentially relevant consideration: a RIL hearing may be stayed pending an AND adjudication, or the RIL and AND adjudication hearings may be consolidated.
There is another possible outcome where DSS moves to place a parent on the RIL but does not immediately file an AND petition. The parent may decline to seek judicial review within the timeframes allotted, perhaps because they believe they can be successful with in-home services, and they would rather not go to court. Weeks or months later, DSS may decide for any number of reasons to file an AND petition (e.g., if the parent is not progressing with the services provided or if DSS wishes to secure permanence with a relative). Now, the parent has a court case, but they have lost their ability to challenge the RIL placement. A responsible individual (and their attorney, if any) should carefully consider whether to timely seek judicial review of an RIL placement decision.
Criminal convictions. A person determined by DSS to be a responsible individual is ineligible for judicial review of RIL placement if the person is criminally convicted based upon the same incident. G.S. 7B-324(a). Given that, DSS may place the individual on the RIL knowing that the agency will not be subject to judicial review and no showing will be required. The district court has the discretion to stay a RIL judicial review proceeding if the responsible person is facing criminal charges for the same incident. G.S. 7B-324(b); In re Patron, 250 N.C. App. 375 (2016) (denying motion to stay).
Culpability. RIL placement requires a determination that an individual is responsible for the abuse or serious neglect of a child. G.S. 7B-311. If DSS does not determine who is responsible, placement on the RIL does not occur. For AND purposes, however, a juvenile may be adjudicated abused without a determination by DSS or the court of who is responsible. See In re L.Z.A., 249 N.C. App. 628 (2016) (abuse adjudication was supported by findings of unexplained non-accidental injuries while the child was in the parents’ sole custody). DSS may determine that the facts warrant an AND petition even without having determined the specific culpability of a parent or other individual. In that case, DSS may file an AND petition without naming a responsible individual and placing them on the RIL.
Seriousness of neglect. In the AND context, neglect is about the child’s status and is based on circumstances created by a parent, guardian, custodian, or caretaker that causes harm or a substantial risk of harm to the juvenile because of certain acts or omissions. See G.S. 7B-101(15) (definition of “neglected juvenile”); In re Stumbo, 357 N.C. 279 (2003). To be placed on the RIL, however, an individual must be determined to be responsible for the abuse or “serious neglect” of a juvenile. Although the definitions related to abuse are the same, the standard differs for neglect. Juveniles are not adjudicated “seriously neglected.” In re J.M., 255 N.C. App. 483 (2017). Serious neglect applies solely to the RIL. Serious neglect is defined as “[c]onduct, behavior, or inaction…that evidences a disregard of consequences of such magnitude that [it] constitutes an unequivocal danger to the juvenile’s health, welfare, or safety, but does not constitute abuse.” G.S. 7B-101(19a). DSS may decide that the seriousness of the neglect and the specific facts of a situation warrant an AND petition but do not rise to “serious neglect” warranting placement on the RIL.
Appropriate parenting. The distinction between RIL and AND processes can also be seen where a non-parent (e.g., a caretaker) is determined to be a responsible individual, but the victim child’s parents respond appropriately. For example, consider a relative, like a grandparent, who the child spends summer vacation with. Say the parents learn that the relative has abused their child and they respond by notifying law enforcement, cooperating with a DSS investigation, and no longer leaving their child in the relative’s care. In this scenario, the DSS would have no need to file an AND petition or to otherwise interfere with the parents’ constitutional rights. The DSS could move forward with the placement of the caretaker on the RIL.
Recordkeeping. An individual must file a petition within fifteen days of receiving notice of an RIL placement to seek judicial review, except in extraordinary circumstances or in the interest of justice. G.S. 7B-323(a), (e). Petitions for judicial review are placed in a JRI file (c.f. JA files for AND and JT for termination proceedings), and a case number is assigned using a sequential numerical series for multiple challenges. N.C. Rules of Recordkeeping, R. 12.16. Consider, for example, a father determined by DSS to be responsible for having abused his three children. If the father receives notice he is to be placed on the RIL and files a petition for judicial review, a file number would be created for each child he abused, and the file numbers would be sequential (e.g., 23JRI10, 23JRI11, and 23JRI12).
JRI files are maintained by juvenile clerks and must be kept separate from other juvenile files. RIL hearings are recorded to a CD with no other cases or hearings allowed on the same CD. N.C. Rules of Recordkeeping, R. 12.16. Separate dockets for judicial review actions are maintained by clerks. G.S. 7B-323(b).