Children and teens who are in the custody of DSS are (or have been alleged to be) abused, neglected, and/or dependent. While in out-of-home placements, these children experience (1) ongoing separation from their families and communities (e.g., parents, siblings, school), (2) losses (relationships, pets, their home), (3) unpredictability (parent behavior at visits), and (4) uncertainty (placement transitions, caseworker turnover). Not surprisingly, these children have a significantly higher rate (up to 80%) of mental health issues than children who are not involved with child welfare (18-22%).[1] Compounding this situation is the lack of appropriate placements for children in DSS custody.[2] Concerns about DSS safely transporting children in its custody to placements when those children have significant mental health needs has arisen. Addressing transportation concerns, the NC General Assembly in the 2023 Appropriations Act enacted G.S. 7B-905.2: “Transportation of High-Risk Juveniles,” effective retroactively to July 1, 2023. See S.L. 2023-134, sec. 9J.13.
G.S. 7B-905.2 is limited in scope and should not be relied upon 1) for any and all transportation issues for juveniles in DSS custody or 2) for transporting juveniles who are not in DSS custody but have behavioral issues. This post discusses when G.S. 7B-905.2 applies, what it allows, and what it does not.
Which Juveniles Does G.S. 7B-905.2 Apply To?
G.S. 7B-905.2 applies to a “high-risk juvenile,” which is defined at G.S. 7B-905.2(a)(1) as:
A juvenile who is under 18 years of age who has been abused or neglected, who has serious emotional, mental, or behavior disturbances that pose a risk of harm to self or others, and who resides outside of a residential placement due to the serious emotional, mental, or behavioral disturbances.
- The Juvenile Is in DSS Legal Custody after an Adjudication of Abuse or Neglect
Although not explicitly included in the definition, reading the statute in its entirety, including recognizing its location is in Subchapter I of Chapter 7B of the North Carolina General Statutes (“the Juvenile Code”), the juvenile must be in the legal custody of DSS through a dispositional order entered in an abuse or neglect action. See G.S. 7B-905.2(a) (DSS as custodian via Article 9 (dispositions) requests transportation); see also In re J.E.B., 376 N.C. 629 (2021) (statutory construction).
As a “custodian,” DSS must have legal custody of the juvenile. See G.S. 7B-101(8) (definition of “custodian”). If DSS only has physical custody or placement authority, the juvenile is not a “high-risk juvenile” for purposes of this statute. Additionally, juveniles who are in the nonsecure custody of a DSS are neither (1) adjudicated abused or neglected nor (2) in the legal custody of a DSS under Article 9, the dispositional statutes. These juveniles, although in DSS custody, are not a “high-risk juvenile” for purposes of this statute. Finally, juveniles who are adjudicated dependent only do not fall under the definition of “high-risk juvenile” because the definition is limited to juveniles who have been abused or neglected. Compare G.S. 7B-101(9) (definition of “dependent juvenile”) with 7B-101(1) (definition of “abused juveniles”) and (15) (definition of “neglected juvenile”). In these situations where the juvenile is not a “high-risk juvenile,” transportation should not be requested under G.S. 7B-905.2.
- The Juvenile Must Have a Disturbance and Pose a Risk of Harm
When an abused or neglected juvenile satisfies the “custody” provision of G.S. 7B-905.2(a), they must have a serious emotional, mental, or behavioral disturbance and pose a risk of harm to self or others. This language is similar to the sub-definition of abuse that encompasses emotional abuse where a parent, guardian, custodian, or caretaker “creates or allows to be created serious emotional damage to the juvenile… evidenced by a juvenile’s severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others.” G.S. 7B-101(1)(ii)e. compare with G.S. 7B-905.2(a). Like the definition of emotional abuse, G.S. 7B-905.2 does not require a formal, or any, mental health diagnosis. See In re K.W., 272 N.C. App. 487 (2020); In re A.M., 247 N.C. App. 672 (2016). If the juvenile does not have a serious disturbance and pose a risk of harm to self or others, they are not a high-risk juvenile and transportation under G.S. 7B-905.2 does not apply.
- The Juvenile Must Reside Outside of a Residential Placement
The last criteria of G.S. 7B-905.2 requires the juvenile reside “outside of a residential placement” because of their serious emotional, mental, or behavioral disturbances. The juvenile’s placement in a nonresidential setting would have to be the result of their emotional, mental, or behavioral disturbances and not other reasons, like the lack of an available residential setting.
“Residential placement” is not defined, and as a result, is open to interpretation. One other statute governing abuse, neglect, and dependency proceedings uses the term “residential placement.” G.S. 7B-505(a) applies to placements for a juvenile in nonsecure custody and refers to “temporary residential placement” in a licensed foster home, DSS operated facility, or home or facility approved by the court and specified in the order (which can include a parent’s or relative’s home). If one applies this broad language to the definition of a high-risk juvenile in G.S. 7B-905.2(a)(1), the juvenile would have to be living in a nonresidential setting, like a DSS office. Whether an institutional setting is a nonresidential setting is an unanswered question. However, one can look for guidance from another Juvenile Code provision, specifically, the definition of “placement” in the Interstate Compact on the Placement of Children (ICPC), which applies to abused and neglected juveniles. The ICPC excludes medical and educational institutions from the definition of “placement.” See G.S. 7B-3800, Art, II(d). Under that definition of placement, juveniles who are in a hospital, psychiatric residential treatment facility, or other medical facility or educational setting would be living outside of a residential placement such that G.S. 7B-905.2 applies.
Where Is the Transportation To?
When all the criteria for a high-risk juvenile are met, G.S. 7B-905.2 applies. Transportation is provided in the county where the juvenile resides but is not limited to that county. G.S. 7B-905.2(a); see G.S. 7B-153A-257 (legal residence for social services purposes). The transportation is provided only to assist the county DSS with placement. G.S. 7B-905.2(a). Transportation of the juvenile for other reasons, such as to an appointment or other setting (e.g., a court date, a counseling session) is neither contemplated nor authorized by G.S. 7B-905.2.
Who Transports the Juvenile?
Transportation for a “high-risk juvenile” may be provided by a “high-risk juvenile transporter,” defined as “a law enforcement agency, the Division of Juvenile Justice of the Department of Public Safety [DJJ], or the Department of Adult Correction [DAC] and includes the designated staff of those agencies.” G.S. 7B-905.2(a)(2).
Who Can Request Transportation of a High-Risk Juvenile?
Only a County DSS. Only one entity has statutory authority to request transportation from a high-risk juvenile transporter – the director of the county DSS who has legal custody of a juvenile whom the court is exercising jurisdiction over at the dispositional stage of an abuse or neglect proceeding. G.S. 7B-905.2(a). A director includes their authorized representative, which includes staff in the child welfare division of the county DSS who are assigned to work with the juvenile. See G.S. 7B-101(10) (definition of “director”); 108A-14 (duties of director and delegation). DSS may make the request after it determines that assistance with placing the juvenile is necessary. See G.S. 7B-905.2(a).
Not Others. Although an abuse or neglect action involves parties other than DSS, including the juvenile who is represented by a guardian ad litem team (see G.S. 7B-601) and respondent parents, guardians, custodians, or caretakers, none of those parties have authority under G.S. 7B-905.2 to request the juvenile be transported by a high-risk juvenile transporter. Similarly, any institution seeking to discharge/release or to admit a high-risk juvenile lacks authority under G.S. 7B-905.2 to request transportation from a high-risk juvenile transporter.
Not by Court Order. G.S. 7B-905.2 does not authorize the district court presiding over the abuse or neglect proceeding to order a high-risk juvenile transporter to provide transportation for the juvenile. Further, other than the initial nonsecure custody order, there are no provisions in the Juvenile Code that authorize the court to order a non-party to the abuse or neglect action to transport the juvenile. See G.S. 7B-504 (nonsecure custody order). Any such order is made without statutory authority and without personal jurisdiction over the high-risk juvenile transporter, whether that transporter is the law enforcement agency, DJJ, or DAC.
How Is a Request for Transportation Made?
Under G.S. 7B-905.2(a), the county DSS must make its request for transportation of a high-risk juvenile to a high-risk juvenile transporter in writing.
Is the Transportation Mandatory?
No. DSS is not required to make the request; it is discretionary. The high-risk juvenile transporter is not mandated to provide transportation upon the written request of a DSS. The transporter may agree to provide the assistance requested by DSS. See G.S. 7B-905.2(a). If DSS makes a written request of one transporter and they decline, DSS may make a written request to another transporter. For example, if DSS makes a written request of DJJ and they decline, DSS may make a written request to the local law enforcement agency. As a practical matter, DSS may want to initiate contact with their local law enforcement agency, DJJ, and/or DAC to determine whether those agencies have capacity and are willing to be a high-risk transporter so that when transportation for a high-risk juvenile is needed, DSS will know which agency to contact.
What Are the Conditions of Transportation?
The juvenile who is being transported has serious emotional, mental, or behavioral disturbances that pose a risk of harm to the juvenile or to others. To ensure safety, the high-risk juvenile transporter may use reasonable force to restrain the juvenile if reasonable force “appears necessary to protect the high-risk juvenile transporter or other individuals.” G.S. 7B-905.2(b). The high-risk juvenile transporter reasonably determines what use of restraints are necessary given the circumstances for the juvenile’s, the transporter’s, and others’ safety. Id. A high-risk juvenile transporter is immune from criminal or civil liability for assault, false imprisonment, or other torts or crimes because of the reasonable measures the transporter took or failed to take, so long as the transporter acted in good faith and did not engage in gross negligence, wanton conduct, or intentional wrongdoing. G.S. 7B-905.2(c).
Who Pays for the Cost of Transportation?
The county DSS with legal custody of the high-risk juvenile is responsible for the costs and expenses of the transportation. G.S. 7B-905.2(d).
Can There Be a Transportation Agreement?
Yes. The county DSS and high-risk juvenile transporter may enter into a “transportation agreement” that establishes requirements, procedures, and guidelines. G.S. 7B-905.2(d). These agreements should ensure they address the provisions of G.S. 7B-905.2. If a county DSS has a large number of children who have been adjudicated abused or neglected and are in its legal custody, it may make practical sense to approach one of the high-risk juvenile transporters about entering into a transportation agreement under G.S. 7B-905.2. This way, there is clarity for DSS and the high-risk juvenile transporter about the protocols that apply and which agency has agreed to provide transportation for high-risk juveniles.
[1] https://www.ncsl.org/human-services/mental-health-and-foster-care
[2] Various news articles in NC and other states discuss children sleeping in DSS offices. See, e.g., https://abc11.com/foster-care-children-kids-north-carolina/13663742/; https://www.postandcourier.com/politics/sc-children-spent-hundreds-of-nights-in-state-offices-in-overloaded-foster-care-system/article_2da539fe-3615-11ee-a01a-ab96df14a349.html.