Juvenile Law Update: Responsible Individuals List - District Court Judges' Conference

1. District Court Judges’ ConferenceJune 13, 2006 Juvenile Law Update Janet Mason Institute of Government

2. “Responsible Individuals List” • Jurisdiction & Authority • GAL for Parent • Time Limits • Appeals • TPR • Jurisdiction & Procedure • Evidence & Grounds • Adoption • Delinquency

3. “Responsible Individuals List”G.S. 7B-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

4. 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

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

6. 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.

7. 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.

8. 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

9. Guardian ad Litem for Parent[Petitions & actions filed before10/1/05] • Allegation of dependency caused by substance abuse, mental illness, etc., always • Requirement that court appoint guardian ad litem

10. 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

11. 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: • is incompetent or has diminished capacity and • cannot adequately act in his or her own interest.

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

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

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

15. 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

16. 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

17. 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.

18. TPR: Jurisdiction and ProcedureIn 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

19. 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

20. 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

21. TPR: Evidence and Grounds • Social worker could testify to parent’s out-of-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.

22. 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.

23. 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 court-ordered 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.

24. 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.

25. 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.

26. 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

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