District Court Judges Conference June 13 2006 Juvenile

District Court Judges’ Conference June 13, 2006 Juvenile Law Update Janet Mason Institute of Government

1. 2. 3. 4. 5. 6. “Responsible Individuals List” Jurisdiction & Authority GAL for Parent Time Limits Appeals TPR – Jurisdiction & Procedure – Evidence & Grounds 7. Adoption 8. Delinquency

“Responsible Individuals List” G. S. 7 B-320 through -324 • DHHS established “Responsible Individuals List” May 1, 2006 • If local DSS finds abuse or serious neglect, DSS Director – determines who is Responsible Individual – sends name to DHHS

Petition to District Court for Removal of Name from List • Hearing closed at party’s request • No right to appointed counsel • DSS has burden of proof, by preponderance of evidence • Rules of evidence (sort of) apply • Hearing stayed if DSS files juvenile petition • Order must be entered within 30 days

Issue for the Court • Has DSS established by a preponderance of the evidence • that the DSS director’s determinations 1. that the child was abused or seriously neglected and 2. that John Doe is the responsible individual • were supported by relevant evidence that a reasonable mind would accept as adequate to support a conclusion?

Jurisdiction and Authority – In re O. S. • Court may not order “permanent custody” at nonsecure custody hearing. • Since DSS took a voluntary dismissal, not clear that there still was a custody order.

Jurisdiction and Authority - In re H. S. F. • Court may review even if not required • Silence = consent for judge to interview child in private • Before returning child: “Child will receive proper care in a safe home. ” • May not give parent “physical custody” and order placement with someone else.

Authority: Guardianship - In re E. C. • May appoint guardian of the person for a child at any time (disp. here) • Effect depends on findings and whether it is “permanent plan” – By itself • Does not cease reunification • Does not stop reviews – Must specify visitation

Guardian ad Litem for Parent [Petitions & actions filed before 10/1/05] • Allegation of dependency caused by substance abuse, mental illness, etc. , always • Requirement that court appoint guardian ad litem

Guardian ad Litem for Parent [Petitions & actions filed before 10/1/05] • Without allegation of dependency, – GAL required if case is clearly focused on parent’s incapacity – GAL not required just because some evidence of substance abuse or mental health issues – Rule 17 may require a hearing on whether to appoint GAL

Petitions & Actions Filed on or after 10/1/05 Court may appoint GAL for a parent, per Rule 17, if court finds reasonable basis to believe the parent: 1. is incompetent or has diminished capacity and 2. cannot adequately act in his or her own interest.

GAL for Parent–after 10/1/05 1. Allegations not determinative 2. Court may appoint GAL on own motion or motion of party 3. Parent’s attorney may not also be GAL 4. GAL has privilege & confidentiality same as attorney 5. Role of the GAL is still unclear

1. Is the GAL a “guardian of due process”? (In re Shepherd) 2. Does GAL step into the shoes of the respondent and control the litigation? (In re J. A. A. )

On and after 10/1/06 Do not appoint a guardian ad litem for a parent “just to be safe. ”

Statutory Time Limits: Recent Cases Entry of Order – Five-month delay was prejudicial – Six-month delay was prejudicial – Party did not show prejudice resulting from • 5 -month delay • 21 -day delay • 53 -day delay

Statutory Time Limits: Recent Cases Timing of Hearing – Party did not show prejudice when tpr hearing was held • 7 months after petition was filed (key DSS witness not available until then) • 7 months after petition was filed (part of delay caused by appellant) – Delay in holding hearing did not deprive court of jurisdiction

Appeal Issues • Return of child to parent’s custody did not make parent’s appeal moot. In re A. K. • Cases filed before 10/1/05: – No right to appeal PP order that did not affect status of child or change custody. In re C. L. S. ; In re L. D. B. – No right to appeal adjudication but not disposition. In re A. L. A.

TPR: Jurisdiction and Procedure In re D. D. J. • DSS petitioner / movant must have custody • “Closing case” may have ended jurisdiction In re L. O. K. • Rule 41 did not prevent filing of new petition after dismissal

TPR: Jurisdiction and Procedure Effect of Failing to Attach Prior Custody Order to Petition/Motion • In re Z. T. B. (6/7/05): trial court lacked subject matter jurisdiction • In re B. D. (11/1/05): no error – appellant failed to show prejudice • In re T. B. (6/6/06): trial court lacked subject matter jurisdiction; should have granted motion to dismiss

TPR: Jurisdiction and Procedure - In re K. D. L. • When parent requests funds to take the (incarcerated) parent’s deposition, apply Matthews v. Eldridge test: – The party’s interest – The state’s interest – The likelihood of error

TPR: Evidence and Grounds • Social worker could testify to parent’s outof-court statements. In re S. W. • Business records exception applied to child support records and medical records. In re S. W. • Court could consider prior orders in the case even though no party introduced them into evidence. In re M. N. C.

TPR: Evidence and Grounds • “Best interest” is a conclusion of law. - In re M. N. C. • To establish “neglect” when child has been out of parent’s custody and is properly cared for, petitioner must show – prior neglect – likely repetition if child returned • If parent is a minor, assess willfulness differently. - In re J. G. B.

TPR: Evidence and Grounds • For ground of willfully leaving the child in foster care. . . for more than a year. . . – the “one year” is counted from first courtordered placement. In re A. C. F. – Assessment of whether parent has made “reasonable progress” may consider evidence up to time of hearing. In re J. G. B. ; In re A. C. F.

Adoption - In re Anderson Putative father’s offer to provide support, rejected by the child’s mother, was not sufficient to prevent the loss of his right to object to the child’s adoption.

Delinquency • Aunt was not parent, guardian, or custodian for purpose of juvenile’s custodial interrogation. State v. Ogglesby • Standard for testing sufficiency of a petition is same as for indictment. In re R. D. R. ; In re B. D. W. • Court could not grant motion for substantive amendment of an order after the juvenile’s appeal was perfected. In re R. D. R.

In re J. L. B. M. • Insufficient findings to determine whether juvenile was “in custody” when he confessed • No statement in commitment order of maximum possible time of commitment • No findings to support denying juvenile’s release pending appeal

In re K. T. L. Trial court made sufficient findings and did not abuse discretion when court: 1. denied motion to close hearing in case of 8 -year-old charged with involuntary manslaughter 2. at disposition, placed juvenile on intensive probation and in DSS custody 3. ordered that juvenile remain in DSS custody and residential treatment facility pending appeal