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District Court Judges’ Conference October 21, 2005. Case and Legislative Update: Juvenile Law Janet Mason Institute of Government. Abuse, Neglect, Dependency. Pre-Petition. DSS conducts investigative assessment or family assessment
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District Court Judges’ ConferenceOctober 21, 2005 Case and Legislative Update: Juvenile Law Janet Mason Institute of Government
Pre-Petition • DSS conducts • investigative assessment or • family assessment • If DSS finds abuse or “serious neglect,” name → Responsible Individual List • Appeal is to: • DSS Director • (District Attorney) • District Court • Court of Appeals
Hearing on Petition to Expunge Name from List • Must close hearing at party’s request • No right to appointed counsel • DSS has burden of proof • Standard = preponderance of evidence • Rules of evidence (sort of) apply • Hearing is stayed if juvenile petition filed • Order must be entered within 30 days
Hearing on Petition to Expunge • DSS director has found that substantial evidence supports both • determination of abuse or serious neglect & • identification of responsible individual • Substantial Evidence = “Relevant evidence a reasonable mind would accept as adequate to support a conclusion” • Issue for Court = correctness of DSS director’s determination and identification
Jurisdiction • Court may not order nonsecure custody when no petition has been filed [KCG, p 2] • Expiration of summons → lack of • Personal jurisdiction and • Subject matter jurisdiction [ABD, p 7]
Jurisdiction • Where initial petition was not verified, court lacked subject matter jurisdiction at review hearing [TRP, p 4] [with dissent] • No legal authority to retain jurisdiction in particular case [LL, p 5]
Competing Custody Orders 2005-320 (H 801) If both Ch. 7B (juvenile) and Ch. 50 (civil) custody orders exist, • The juvenile order controls, and • The civil order is stayed.
Competing Custody Orders 2005-320 (H 801) Court in the juvenile case may • Consolidate the cases • Dissolve the stay • Transfer either case to the district of the other case, after consulting the court in that district
Terminating JurisdictionS.L. 2005-320 (H 801) • When does a juvenile case end? • What is status of child and parties when case ends? [Dexter, 2002] • Can the court turn a juvenile order into a civil custody order?
YES, court may modify or create a Chapter 50 custody order if • Permanent plan = custody with a parent, relative, or other person • Court makes Ch. 50 findings • State intervention through juvenile court is no longer required
Guardian ad Litem for Child • Failure to appoint GAL for child, when required, is reversible error (even if attorney advocate is appointed). [RAH, p 11]
Guardian ad Litem for Parent[Petitions & Actions Filed Before 10/1/05] • Allegation of dependency caused by substance abuse, mental illness, etc., always • Duty to appoint guardian ad litem [DDY and CB, p 2]
Guardian ad Litem for Parent[Petitions & Actions Filed Before 10/1/05] • Without allegation of dependency, GAL may or may not be required. • Is required if case is clearly focused on parent’s incapacity [TW, P 8] • Not required just because some evidence relates to substance abuse [AsLG, p 8; OC, p 12]
Guardian ad Litem for ParentPetitions & Actions Filed On or After 10/1/05 Court may appoint GAL for a parent, per Rule 17, if the court finds reasonable basis to believe that the parent: • is incompetent or has diminished capacity and • cannot adequately act in his or her own interest.
GAL for Parent– on or after 10/1/05 • Allegations not determinative • Court may appoint GAL on own motion or motion of party • May not appoint parent’s attorney as GAL • GAL has privilege & confidentiality same as attorney • GAL has authority to • Help parent enter consent order • Facilitate service of process • Assure necessary pleadings are filed • Help ensure procedural due process
Appointment of Counsel for Parent • In every abuse, neglect, dependency case, summons or notice must show appointment of “provisional counsel” • At first hearing, court affirms the appointment unless the parent: • Does not appear at the hearing, • Is not indigent, • Has retained counsel, or • Waives the right to counsel.
Fees of CounselAppointed for Parent on or after 10/1/05 SL 2005-254 • Court may require parent to pay fees if child is adjudicated abused, neglected, or dependent, or parent’s rights are terminated. • Must consider parent’s ability to pay • Must file judgment immediately if parent fails at disposition to pay fees ordered for parent’s counsel or child’s attorney or GAL
What about the “innocent parent”? [JAG, p 2] • Father harmed child while mother away • Only mother appealed • Court held: • Findings relating to mother were not supported by evidence • Child still properly adjudicated neglected because harmed by father • Giving custody to DSS at disposition was abuse of discretion
Nature of the Proceeding • Initial juvenile proceeding: “Is the child a ‘neglected juvenile’?” • Termination of parental rights” “Did the mother neglect the child; is it likely mother would neglect the child if custody is returned to her?”
Are these orders moot for purposes of appeal? • Order adjudicating neglect and placing child in DSS custody, after the court returns full custody to parents [AK, p 3] • Order terminating parent’s rights, when child dies while appeal is pending [CC, p 13]
Priority for Relative Placement Must place child with relative willing and able to provide proper care & supervision in a safe home, unless court finds the placement is contrary to child’s best interest. • Nonsecure Custody – GS 7B-505 and -506 • Disposition – GS 7B-903 Also: [LL, p 5] • Review hearings – GS 7B-906 • Permanency planning hearings – GS 7B-907
Sufficiency of Findings at Review or Permanency Planning • Fact that parent has made some progress does not prevent ceasing efforts • Best interests of the child are paramount • Must consult GS 7B-906 or -907 and include all findings required by statute [LL and TK, p 5; CEL, p 6]
Termination of Parental Rights:Service of Process • Rule 5 service of motion and notice available only if original action commenced less than two years ago [PLP, p 7] • Child’s guardian ad litem may waive service of process [JB, p 9] • Parent is not aggrieved party for purpose of defect in service on child [JB, p 9]
Termination of Parental Rights:Grounds SL 2005-146 adds: • Parent has committed murder or voluntary manslaughter of child’s other parent • Petitioner may prove conviction or elements • Court must consider whether crime involved self-defense, defense of others, or other justification
When is evidence clear, cogent, convincing, and sufficient to establish ground? • Neglect & Willfully leaving child in care . . . PLP, p 7 – affirmed, with dissent DM, p 12 – affirmed, with dissent JW, p 13 – affirmed, with dissent CC, p 13 – reversed
Incarcerated Parent[DJD, p 14] • COA affirmed trial court’s conclusion that multiple grounds existed • Focused on father’s • extended lack of contact and • failure to do what he was able to do while incarcerated
Motion for Funds for Expert Indigent party must show reasonable likelihood that expert • would assist substantially in trial preparation, or • would assist materially in the case, or • is necessary for a fair trial. [DR, p 8; JB, p 9]
Trial Court Authority / Discretion Extend to: • Continuances • Limiting discovery (denial of motion to interview child) • Excluding parent from courtroom during child’s testimony • Directing party’s attorney to draft order on court’s behalf [JB, p 9]
Prior Orders • At adjudication in termination case, court may take judicial notice of prior orders • Even if they involved lower standard of proof. • Court is assumed to disregard incompetent evidence. • Court still must make “independent determination” that a ground exists. [JB, p 9]
Termination Petition or Action Filed On or After 10/1/05 • At disposition, court must determine whether terminating parent’s rights is in child’s best interest, considering: • Child’s age • Likelihood of adoption • Whether tpr will help achieve permanent plan • Bond between parent and child • Quality of child’s relationship with proposed adoptive parent, guardian, or custodian • Any other relevant factor
AppealsProceedings Filed on or after 10/1/05 • Time for giving notice of appeal = 30 days • Lawyer for appealing party • Must sign the notice of appeal • May give notice of appeal only if directly instructed by client to do so after conclusion of proceeding • Attorney advocate must sign notice of appeal when juvenile appeals
Proceedings Filed on or after 10/1/05 An order may be appealed only if it: • finds absence of jurisdiction • determines the case, precludes later appeal • is initial disposition (appeal includes adjudication) • changes custody (other than nonsecure) • ceases reunification efforts (*note timing) • grants or denies petition or motion to terminate parental rights
Appeal of Order Ceasing Reunification Efforts • Party may give notice in court or in writing within 10 days of hearing, to preserve issue for appeal • Parent may appeal • when appealing later termination order, or • “within 180 days of the order” if no termination motion or petition is filed • Guardian or custodian may appeal “immediately”
Jurisdiction During AppealSupreme Court Affirms Stratton, Rejects Hopkins[ RTW, p 10; NB, p 11] • Court interpreted statutory language to say that trial court has jurisdiction to terminate parental rights during appeal of prior order • Court must have independent basis for termination • Holding applies only to actions and proceedings filed before 10/1/05
Actions & Proceedings Filed On or After 10/1/05 During an Appeal: • Order on appeal may be enforced, unless stayed by trial or appellate court • Unless appellate court orders otherwise, trial court may continue to exercise jurisdiction & conduct hearings, except under Article 11 (TPR) • If appeal is of tpr order and case did not begin as abuse, neglect, or dependency, court may enter temporary orders affecting child’s custody or placement
Petitions & Actions Filed on or after 10/1/05 New Requirement • Disposition in abuse, neglect, dependency case must be • Immediately after adjudication • Completed with 30 days
Petitions & Actions Filed on or after 10/1/05: If an order that is required to be entered within 30 days is not: • Clerk must schedule hearing for first juvenile session • Purpose of hearing = • Determine & explain reason for delay • Obtain clarification of contents • Order must be entered within 10 days after hearing
Termination order entered 5 months after TPR hearing CJB, p 15 • Reversed • But not reversible per se • Appellant must show prejudice • Longer the delay, easier it is to show prejudice
Termination hearing held more than 6 months after petition filed. DJD, p 15 • Not reversible error • Respondent caused part of delay • Respondent did not show prejudice
Missing almost all deadlines, by from 2 days to 4 months CLC, p 15 • Not reversible error (one judge dissenting) • Respondent did not show prejudice
Termination order entered 69 days after hearing DR, p 16 • Not reversible error • Respondent failed to show prejudice
Review hearing order entered 9 months after hearing. LL, p 14 • Reversed • Prejudice in • Delay of appeal • Frustration of permanent plan • Parties left in limbo • Change in child’s attachment during delay
Termination order entered two months after hearing. PLP, p 16 • Not reversible error • Respondent did not argue or show prejudice
Five-month delay in entry of termination order SBM, p 16 • Not reversible error • Respondent failed to show prejudice
Adjudication order entered 3 months after hearing • DSS filed termination petition 7 months after ordered to do so AsLG, p 17 • Not reversible error • Respondent failed to show prejudice • Court expressed “great reservation” about the “inexplicable” delays
Adoption Consent(Fakhoury v. Fakhoury, p 17) Father, whose wife left him after he signed consent for step-parent adoption, did not establish that his consent was obtained by fraud.
Accepting Juvenile’s Admission[TEF, p 18] • State Supreme Court, affirming Court of Appeals: • Before accepting juvenile’s admission, court at minimum must ask the 6 questions in 7B-2407. • Duty to give juveniles more protection than adults