Juvenile Law Case and Legislative Update

District Court Judges’ Conference

October 8, 2003

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Obstruction of or Interference with Child Protective Services Investigation (G.S. 7B-303)

1. Did respondent’s conduct constitute “interference” or “obstruction”?

2. Was there a “lawful excuse” for the interference or obstruction?

3. Was DSS justified in initiating an investigation: did DSS receive a report of neglect (or abuse or dependency) that required an investigation?

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In re Stumbo 357 N.C. 279, 582 S.E.2d 255 (7/16/03)

Holding: Anonymous report that someone had seen a two-year-old naked child alone in a driveway was not a “report of neglect” and did not trigger DSS’s duty to investigate and related powers.

Therefore, trial court erred in granting petition for a non-interference order under G.S. 7B-303.

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Definitions Must Be Interpreted By:1. Person deciding whether to make report. 2. Person(s) at DSS deciding whether to accept report. 3. People at DSS who review decision not to accept a report. 4. Social worker who investigates.5. Prosecutor asked to review DSS decision not to substantiate. 6. DSS attorney advising whether to file a petition.7. Judge deciding whether to grant nonsecure custody order. 8. Parties deciding how to respond to petition. 9. Judge who presides over the adjudication hearing.10. Court of appeals and supreme court.

11. ADD: Judge in response to interference petition.

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Stumbo and Legislative ChangesS.L. 2003-304 (S 421) (7/4/03)

• School principals must report certain unexcused absences to DSS, which must decide whether to initiate a neglect investigation.

• DSS must provide training about state and federal law regarding basic rights of child welfare clients.

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Social Worker EntryS.L. 2003-304 (S 421) (7/4/03)

Social worker may enter a private residence for purpose of investigation only with:

1. Reasonable belief that child is in imminent danger of death or serious physical injury, or

2. Consent of a parent or person responsible for child’s care, or

3. A law enforcement officer who has authority to enter, or

4. A court order.

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In re Morales583 S.E.2d 692 (N.C. App., 8/5/03)

When there is no physical evidence to support a diagnosis of sexual abuse, expert witness:

1. may not give opinion that sexual abuse occurred.

2. may testify

a. about profiles of sexually abused children and

b. that a particular child has symptoms that are consistent with that profile.

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Permanency Planning Hearing OrdersIn re Weiler, 581 S.E.2d 134 (N.C. App., 6/17/03)

1. A permanency planning order is immediately appealable ___ always ___ sometimes ___ never

2. What kind of findings are required to support a conclusion that a plan should change from reunification to custody, guardianship, or adoption?

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Inserted Update: Compare

• Weiler – Permanency Planning Hearing.

Court failed to find that efforts would be futile or inconsistent with child’s health, safety, or need for a permanent home in a reasonable period of time.

• Lechuga v. Ore (N.C. App., 10/7/03) – TPR.

Court found neglect, but failed to find that child was impaired or there was a substantial risk of impairment due to neglect.

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Initiating TPR Proceeding Petition vs Motion

• Both may be filed by any person with standing• Both must contain information set out in G.S. 7B-

1104 • Both (probably) should have information or

affidavit required by G.S. 50A-209• They must be served on (almost) the same people• Same time to respond

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Petition Motion

• Requires summons• New file and file

number• New appointment of

counsel and GAL

• Respondent files Answer

• Clerk mails notice of hearing

• Requires notice• Part of existing

juvenile case• Counsel and GAL

continue unless court orders otherwise

• Respondent files Response

• Moving party mails notice of hearing

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Petition vs Motion: Service of Process

• Petition/summons: Rule 4 service required• Motion/notice: Rule 5 service okay unless

– Person or agency was not served originally with summons,

– Person was served by publication that did not include notice that tpr possible,

– Two years have elapsed since “original action”, or

– The court orders Rule 4 service.

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In re Stratton, 583 S.E.2d 323 (N.C. App., 8/5/03). Termination action can proceed while abuse/neglect order is on appeal.

In re McKinney, 581 S.E.2d 793 (N.C. App., 6/17/03). When motion included no prayer for relief or request for an order, court did not have subject matter jurisdiction.

In re Alexander, 581 S.E.2d 466 (N.C. App., 6/17/03). Notice served with a motion must comply fully with G.S. 7B-1106.1.

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Willfulness in Grounds for TPR1. Willfully leaving child in foster care . . .

In re Baker, 581 S.E.2d 144 (N.C. App., 6/17/03) In re Clark, 582 S.E.2d 657 (N.C. App., 7/15/03)

2. Failure to pay reasonable portion of cost of child’s care

3. Failure to pay support pursuant to court order or custody agreement

4. Abandonment. (See In re Estate of Lunsford, 585 S.E.2d 245 (N.C. App., 9/2/03). [See also, McKinney v. Richitelli (N.C. Sup. Ct., 10/2/03).]

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Termination of Parental Rights In re Clark, 582 S.E.2d 657 (N.C. App., 7/15/03)

• Compliance with UCCJEA – Failure to attach affidavit of child’s status to petition did not divest court of jurisdiction.

• Faulty Recording Equipment – Record did not show respondent was prejudiced by partial failure of recording equipment.

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Other Child Welfare Legislation

Service of process pursuant to Rule 4 in abuse/neglect/dependency cases. [S.L. 2003-304 (S 421)]

– Personal service no longer necessary

– Court authorization is required only for service by publication

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Disposition[S.L. 2003-140 (H 1048); S.L. 2003-62 (H 126).]

• Chief district judge may issue administrative order or local rule about sharing of court reports among parties.

• At disposition (and reviews) court may consider any evidence, including hearsay, that is (1) relevant, (2) reliable, and (3) necessary to determine the child’s needs or the most appropriate disposition.

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Necessary Findings[S.L. 2003-140 (H 1048)]

Any time the court appoints a guardian or awards custody to a non-parent, the court must verify that the person

1. understands the legal significance of that status and

2. will have adequate resources to care appropriately for the child.

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Conflicting Custody Orders Pilot[S.L. 2003-381 (S 753)]

12th District – Cumberland County

• If more than one order, juvenile order controls

• Juvenile court may stay, transfer, or consolidate cases

• Court may establish mechanism to determine custody after juvenile jurisdiction ends

• Expires June 30, 2005

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TPR Legislation[S.L. 2003-140 (H 1048); S.L. 2003-304 (S 421)]

1. Who should be guardian ad litem for children in non-DSS cases?

2. Continuance beyond ___ days requires written findings.

3. Incapacity ground: when is the cause of the incapacity relevant?

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Miscellaneous Additions1. Unpublished opinion: In re Bikman (N.C. App., 10/7/03).

In neglect/dependency case, even if mother did not waive right to counsel, that right was protected when her GAL was an attorney who actively defended her interests.

2. N.C. House Interim Committee on Child Abuse and Neglect, Foster Care and Adoption – 24-member committee created 9/19/03 directed to study the child protective services system, including statutes, and report (including proposed legislation) by 4/15/04.

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Delinquency Cases

• Court properly excluded evidence of witness’s school disciplinary record. In re Oliver, 584 S.E.2d 86 (N.C. App., 8/5/03).

• Use of same offense as basis for both probation violation and new adjudication does not violate double jeopardy. In re O’Neal, ___ S.E.2d ___ (N.C. App., 9/16/03).

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Legislation Relating to Delinquency

• Court may order release of photograph of juvenile who escapes. [S.L. 2003-297 (H 1037)]

• At disposition court may consider any evidence, including hearsay, that is (1) relevant, (2) reliable, and (3) necessary to determine the child’s needs or the most appropriate disposition. [S.L. 2003-62 (H 126)]

• Counties can appeal “pay” orders in cases of delinquent and undisciplined juveniles. [S.L. 2003-171 (H 925)]

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Commitment to DJJDPEffective October 1, 2003

• DJJDP may propose alternative placement for committed juvenile

• DJJDP must serve motion on prosecutor, juvenile, and juvenile’s attorney

• Court can approve without a hearing or conduct a hearing

• Juvenile must remain in youth development center until court approves alternative placement

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Quiz: A new law1. gives priority on appeal to what kind of case?

2. authorizes _______ to resolve a dispute between your DSS and another DSS about a child’s legal residence for purposes of payment for services.

3. states explicitly that in proceedings under Subch. I, the “paramount consideration” by the court should be the

(a) child’s best interest (b) child’s safety (c) child’s need for a safe permanent home(d) parents’ constitutional rights