Subchapter 01. Abuse, Neglect, Dependency.
Subchapter 02. Undisciplined and Delinquent Juveniles.
Subchapter 03. Juvenile Records.
Subchapter 04. Parental Authority; Emancipation.
Subchapter 05. Placement of Juveniles.
SUBCHAPTER 01. ABUSE, NEGLECT, DEPENDENCY.
ARTICLE 1. Purposes; Definitions.
Sec.
§ 7B-100. Purpose.
This Subchapter shall be interpreted and construed so as to implement the following purposes and policies:
- To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents;
- To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family.
- To provide for services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles' needs for safety, continuity, and permanence; and
- To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.
- To provide standards, consistent with the Adoption and Safe Families Act of 1997, P.L. 105-89, for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile's best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time.
History
(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2003-140, s. 5.)
Cross References. - As to legislation regarding pilot programs for holding family court within district court districts, see the editor's note under G.S. 7A-244.
As to legislation regarding a study of programs for screening for and identification of delinquency risk factors, see the editor's note under G.S. 7B-1500.
As to legislation regarding a study by the Office of Juvenile Justice (now the Division of Juvenile Justice) in cooperation with the Department of Public Instruction to study ways to coordinate case management, provide services to juveniles in need of treatment, and provide public protection, see the editor's note under G.S. 7B-1500.
As to a study by the Office of Juvenile Justice (now the Division of Juvenile Justice) of blended sentencing and direct filing in certain juvenile cases, see the notes to G.S. 7B-2500.
As to legislation regarding development of a cost-effective plan to establish statewide community-based dispositional alternatives for juveniles adjudicated delinquent, see the editor's note under G.S. 7B-2506.
As to legislation regarding a phased-in 10-county pilot On Track program as an additional probation option for certain juvenile delinquents, see the editor's note under G.S. 7B-2508.
As to legislation regarding pilot Guard Response Alternative Sentencing Programs as an additional probation option for certain first-time juvenile delinquents, see the editor's note under G.S. 7B-2508.
School-Based Child and Family Team Initiative. -
Session Laws 2011-145, s. 10.15(a)-(f), provides: "(a) School-Based Child and Family Team Initiative Established.
"(1) Purpose and duties. - There is established the School-Based Child and Family Team Initiative. The purpose of the Initiative is to identify and coordinate appropriate community services and supports for children at risk of school failure or out-of-home placement in order to address the physical, social, legal, emotional, and developmental factors that affect academic performance. The Department of Health and Human Services, the Department of Public Instruction, the State Board of Education, the Department of Juvenile Justice and Delinquency Prevention, the Administrative Office of the Courts, and other State agencies that provide services for children shall share responsibility and accountability to improve outcomes for these children and their families. The Initiative shall be based on the following principles:
"a. The development of a strong infrastructure of interagency collaboration.
"b. One child, one team, one plan.
"c. Individualized, strengths-based care.
"d. Accountability.
"e. Cultural competence.
"f. Children at risk of school failure or out-of-home placement may enter the system through any participating agency.
"g. Services shall be specified, delivered, and monitored through a unified Child and Family Plan that is outcome-oriented and evaluation-based.
"h. Services shall be the most efficient in terms of cost and effectiveness and shall be delivered in the most natural settings possible.
"i. Out-of-home placements for children shall be a last resort and shall include concrete plans to bring the children back to a stable permanent home, their schools, and their community.
"j. Families and consumers shall be involved in decision making throughout service planning, delivery, and monitoring.
"(2) Program goals and services. - In order to ensure that children receiving services are appropriately served, the affected State and local agencies shall do the following:
"a. Increase capacity in the school setting to address the academic, health, mental health, social, and legal needs of children.
"b. Ensure that children receiving services are screened initially to identify needs and assessed periodically to determine progress and sustained improvement in educational, health, safety, behavioral, and social outcomes.
"c. Develop uniform screening mechanisms and a set of outcomes that are shared across affected agencies to measure children's progress in home, school, and community settings.
"d. Promote practices that are known to be effective based upon research or national best practice standards.
"e. Review services provided across affected State agencies to ensure that children's needs are met.
"f. Eliminate cost-shifting and facilitate cost-sharing among governmental agencies with respect to service development, service delivery, and monitoring for participating children and their families.
"g. Participate in a local memorandum of agreement signed annually by the participating superintendent of the local LEA, directors of the county departments of social services and health, director of the local management entity, the chief district court judge, and the chief district court counselor.
"(3) Local level responsibilities. - In coordination with the North Carolina Child and Family Leadership Council (Council), established in subsection (b) of this section, the local board of education shall establish the School-Based Child and Family Team Initiative at designated schools and shall appoint the Child and Family Team Leaders, who shall be a school nurse and a school social worker. Each local management entity that has any selected schools in its catchment area shall appoint a Care Coordinator, and any department of social services that has a selected school in its catchment area shall appoint a Child and Family Teams Facilitator. The Care Coordinators and Child and Family Team Facilitators shall have as their sole responsibility working with the selected schools in their catchment areas and shall provide training to school-based personnel, as required. The Child and Family Team Leaders shall identify and screen children who are potentially at risk of academic failure or out-of-home placement due to physical, social, legal, emotional, or developmental factors. Based on the screening results, responsibility for developing, convening, and implementing the Child and Family Team Initiative is as follows:
"a. School personnel shall take the lead role for those children and their families whose primary unmet needs are related to academic achievement.
"b. The local management entity shall take the lead role for those children and their families whose primary unmet needs are related to mental health, substance abuse, or developmental disabilities and who meet the criteria for the target population established by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services.
"c. The local department of public health shall take the lead role for those children and their families whose primary unmet needs are health-related.
"d. Local departments of social services shall take the lead for those children and their families whose primary unmet needs are related to child welfare, abuse, or neglect.
"e. The chief district court counselor shall take the lead for those children and their families whose primary unmet needs are related to juvenile justice issues. A representative from each named or otherwise identified publicly supported children's agency shall participate as a member of the Team as needed. Team members shall coordinate, monitor, and assure the successful implementation of a unified Child and Family Plan.
"(4) Reporting requirements. - School-Based Child and Family Team Leaders shall provide data to the Council for inclusion in their report to the North Carolina General Assembly. The report shall include the following:
"a. The number of and other demographic information on children screened and assigned to a team and a description of the services needed by and provided to these children.
"b. The number of and information about children assigned to a team who are placed in programs or facilities outside the child's home or outside the child's county and the average length of stay in residential treatment.
"c. The amount and source of funds expended to implement the Initiative.
"d. Information on how families and consumers are involved in decision making throughout service planning, delivery, and monitoring.
"e. Other information as required by the Council to evaluate success in local programs and ensure appropriate outcomes.
"f. Recommendations on needed improvements.
"(5) Local advisory committee. - In each county with a participating school, the superintendent of the local LEA shall either identify an existing cross-agency collaborative or council or shall form a new group to serve as a local advisory committee to work with the Initiative. Newly formed committees shall be chaired by the superintendent and one other member of the committee to be elected by the committee. The local advisory committee shall include the directors of the county departments of social services and health; the directors of the local management entity; the chief district court judge; the chief district court counselor; the director of a school-based or school-linked health center, if a center is located within the catchment area of the School-Based Child and Family Team Initiative; and representatives of other agencies providing services to children, as designated by the Committee. The members of the Committee shall meet as needed to monitor and support the successful implementation of the School-Based Child and Family Team Initiative. The Local Child and Family Team Advisory Committee may designate existing cross-agency collaboratives or councils as working groups or to provide assistance in accomplishing established goals.
"(b) North Carolina Child and Family Leadership Council. -
"(1) Leadership Council established; location. - There is established the North Carolina Child and Family Leadership Council (Council). The Council shall be located within the Department of Administration for organizational and budgetary purposes.
"(2) Purpose. - The purpose of the Council is to review and advise the Governor in the development of the School-Based Child and Family Team Initiative and to ensure the active participation and collaboration in the Initiative by all State agencies and their local counterparts providing services to children in participating counties in order to increase the academic success of and reduce out-of-home and out-of-county placements of children at risk of academic failure.
"(3) Membership. - The Superintendent of Public Instruction and the Secretary of Health and Human Services shall serve as cochairs of the Council. Council membership shall include the Secretary of the Department of Juvenile Justice and Delinquency Prevention, the Chair of the State Board of Education, the Director of the Administrative Office of the Courts, and other members as appointed by the Governor.
"(4) The Council shall do the following:
"a. Sign an annual memorandum of agreement (MOA) among the named State agencies to define the purposes of the program and to ensure that program goals are accomplished.
"b. Resolve State policy issues, as identified at the local level, which interfere with effective implementation of the School-Based Child and Family Team Initiative.
"c. Direct the integration of resources, as needed, to meet goals and ensure that the Initiative promotes the most effective and efficient use of resources and eliminates duplication of effort.
"d. Establish criteria for defining success in local programs and ensure appropriate outcomes.
"e. Develop an evaluation process, based on expected outcomes, to ensure the goals and objectives of this Initiative are achieved.
"f. Review progress made on integrating policies and resources across State agencies, reaching expected outcomes, and accomplishing other goals.
"g. Report semiannually, on January 1 and July 1, on progress made and goals achieved to the Office of the Governor, the Joint Appropriations Committees and Subcommittees on Education, Justice and Public Safety, and Health and Human Services, and the Fiscal Research Division of the Legislative Services Office. The Council may designate existing cross-agency collaboratives or councils as working groups or to provide assistance in accomplishing established goals.
"(c) Department of Health and Human Services. - The Secretary of the Department of Health and Human Services shall ensure that all agencies within the Department collaborate in the development and implementation of the School-Based Child and Family Team Initiative and provide all required support to ensure that the Initiative is successful.
"(d) Department of Juvenile Justice and Delinquency Prevention. - The Secretary of the Department of Juvenile Justice and Delinquency Prevention shall ensure that all agencies within the Department collaborate in the development and implementation of the School-Based Child and Family Team Initiative and provide all required support to ensure that the Initiative is successful.
"(e) Administrative Office of the Courts. - The Director of the Administrative Office of the Courts shall ensure that the Office collaborates in the development and implementation of the School-Based Child and Family Team Initiative and shall provide all required support to ensure that the Initiative is successful.
"(f) Department of Public Instruction. - The Superintendent of Public Instruction shall ensure that the Department collaborates in the development and implementation of the School-Based Child and Family Team Initiative and shall provide all required support to ensure that the Initiative is successful."
Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"
Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."
Session Laws 2011-145, s. 32.5 is a severability clause.
Editor's Note. - Articles 1-11 of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 2009-126, s. 1(a) and (b), provides: "The Joint Legislative Program Evaluation Oversight Committee shall include in the 2009-2010 Work Plan for the Program Evaluation Division of the General Assembly a study of existing programs that directly or indirectly benefit children and youth in this State. The Division shall identify the programs and their sources of funding and determine whether the programs have clear goals, indicators, or benchmarks by which to measure the programs' success.
"The Program Evaluation Division shall submit its findings and recommendations to the Joint Legislative Program Evaluation Oversight Committee, the Joint Legislative Study Commission on Children and Youth, and the Fiscal Research Division at a date to be determined by the Joint Legislative Program Evaluation Oversight Committee."
Session Laws 2009-451, s. 10.7A(a)-(k), provided for the consolidation of certain agencies and programs relating to early childhood education and care. See the Editor's note at G.S. 143B-138.1 for details.
Legal Periodicals. - For article, "Leandro v. State and the Constitutional Limitation on School Suspensions and Expulsions in North Carolina" see 83 N.C. L. Rev. 1507 (2005).
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
The common thread running throughout the Juvenile Code (G.S. 7A-516, et seq. [see now G.S. 7B-100 et seq.]) is that the court must consider the child's best
interests in making all placements whether at the dispositional hearing or the review hearing. In re Shue, 63 N.C. App. 76, 303 S.E.2d 636 (1983), modified, 311 N.C. 586,
319 S.E.2d 567 (1984).
Purpose of Juvenile Code. - None of the purposes of the Juvenile Code were met by subjecting a child's family to Department of Social Services supervision because of an adult relative's abuse of the child in his home during a sleepover because an adjudication
of abuse and neglect neither promoted the child's best interest nor protected her mother's fundamental right to parent her child; the child's mother and stepfather took appropriate steps to ensure the child's safety. In re R.R.N.,
368 N.C. 167, 775 S.E.2d 656 (2015).
Legislative Intent. - When, in a dependency proceeding, a trial court's order transferring a child's custody from a department of social services to foster parents was entered eight months late, this resulted in protracted custody proceedings that left the legal relationship between parent and child unresolved and left the child in legal limbo, thwarting the legislature's wish that children be placed in safe, permanent homes within a reasonable amount of time, as stated in G.S. 7B-100(5). In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).
In dependency proceedings, to hold that the failure of a department of social services to list the address of an allegedly dependent child in a petition under G.S. 7B-402, or that the department's failure to file an affidavit required by G.S. 50A-209(a) could prevent a trial court from acquiring subject matter jurisdiction over the juvenile action, would be to elevate form over substance; such a holding would additionally impose jurisdictional limitations that the general assembly clearly never intended in G.S. 7B-100(3) when it sought to balance the interests of children with the rights of parents in juvenile actions. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).
Contrary to the mother's assertion, leaving her sons in their current foster placements with periodic visitation by her was not working as a plan; this arrangement was not only contrary to the permanent plan established by the trial court, it also served
to deny the children the prospect of a safe, permanent home within a reasonable amount of time as contemplated by the Juvenile Code. Termination of the mother's parental rights was affirmed. In re J.S.,
374 N.C. 811, 845 S.E.2d 66 (2020).
Best Interest of the Child is Paramount. - The common thread running throughout the Juvenile Code, G.S. 7B-100 et seq., is that the court's primary concern must be the child's best interest; a child's interest in being protected from abuse and neglect is paramount to his parents' constitutional interest in the custody of their child. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).
Holding that G.S. 7B-1003 did not deprive a trial court of jurisdiction to grant a motion for termination of parental rights that was filed during the pendency of an appeal from the trial court's dispositional order was consistent with the purposes of the Juvenile Code because the holding minimized procedural delay unnecessary to protect parental rights that interfered with addressing a child's needs. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).
Trial court's conclusion that termination of a mother's parental rights was in the child's best interests did not constitute an abuse of discretion because it properly considered the statutory factors; the trial court found that the conduct of the mother and father demonstrated that they would not promote the child's health, physical, and mental well-being and that the child was no closer to returning home than she was on the day she entered into the care of the department of social services. In re N.G., 374 N.C. 891, 845 S.E.2d 16 (2020).
Court properly terminated a father's parental rights because the father's choices and actions resulted in a lengthy delay in his projected release date from incarceration and significantly limited his access to classes, programs, services, and employment which directly related to his case plan; there was no error in the trial court's findings of fact regarding the father's failures in accomplishing his case plan, most of which resulted from circumstances for which he was responsible. In re G.B., - N.C. - , - S.E.2d - (Apr. 16, 2021).
Court properly terminated a father's parental rights because the father's choices and actions resulted in a lengthy delay in his projected release date from incarceration and significantly limited his access to classes, programs, services, and employment which directly related to his case plan; there was no error in the trial court's findings of fact regarding the father's failures in accomplishing his case plan, most of which resulted from circumstances for which he was responsible. In re G.B., - N.C. - , - S.E.2d - (Apr. 16, 2021).
While one of the essential aims of the Juvenile Code is to reunite a parent with a child after the child is taken from the parent's custody, reunification may not always be a viable option. A trial court did not fail to consider the purpose and legislative
intent of G.S. 7B-100(4) when it terminated a mother's parental rights after finding clear, cogent, and convincing evidence that supported
neglect as a ground for termination. In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003).
Goal of G.S. 7B-100(5) is to place children in safe, permanent houses within a reasonable time, and allowing parents to delay termination proceedings by appealing
custody review orders would have thwarted G.S. 7B-100(5); G.S. 7B-1003 did not deprive
the trial court of jurisdiction to terminate the mother's parental rights during the pendency of the custody review order appeal as G.S. 7B-1003 applied only
to dependency proceedings, not to termination proceedings. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).
The purpose of former G.S. 7A-277 was to give to delinquent children the control and environment which might lead to their reformation
and enable them to become law abiding and useful citizens, a support and not a hindrance to the State. In re Whichard, 8 N.C. App. 154, 174 S.E.2d 281 (1970), cert. denied, 403 U.S. 940, 91 S. Ct. 2258,
29 L. Ed. 2d 719 (1971).
Juvenile Hearing. - Former Subchapter XI of Chapter 7A, which contained the former North Carolina Juvenile Code, did not classify a juvenile hearing
as civil or criminal. State v. Smith, 328 N.C. 161, 400 S.E.2d 405, cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991).
Constitutional Rights at Juvenile Hearing. - There are certain constitutional rights which a juvenile has at a juvenile hearing which are not required in civil trials, such as the right to counsel if there is a possibility of commitment and the privilege against self incrimination. This would suggest a juvenile hearing is not a civil case. State v. Smith, 328 N.C. 161, 400 S.E.2d 405, cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991).
Trial court did not abuse its discretion in quashing s mother's subpoena for her child's testimony because its decision to quash the subpoena was based on a reasonable weighing of the relevance of the child's testimony and the detrimental effect that
testifying would have on the child; the trial court's evidentiary rulings assured fairness and equality and provided the mother with a meaningful opportunity to participate in the termination proceeding. In re A.H.,
250 N.C. App. 546, 794 S.E.2d 866 (2016), review denied, 2017 N.C. LEXIS 294 (2017).
The court must consider the welfare of the delinquent child as well as the best interest of the State. In re Hardy, 39 N.C. App. 610, 251 S.E.2d 643 (1979).
State's Interest in Juvenile Proceeding. - The fact that the proceeding is not an ordinary criminal prosecution, but is a juvenile proceeding, does not lessen, but should actually increase, the burden upon the State to see that the child's rights are
protected. In re Meyers, 25 N.C. App. 555, 214 S.E.2d 268 (1975).
Limits to Agency Interference With Parent-Child Relationship. - Department of Social Services has an important role in protecting children; however, because parents have a fundamental right to parent their children, the courts must acknowledge the limits
within which governmental agencies may interfere with or intervene in the parent-child relationship. In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).
The county was not entitled to appeal an order to pay for the mental health evaluation of a juvenile although it had to be given notice and the opportunity to be heard at the juvenile hearing. In re Voight, 138 N.C. App. 542, 530 S.E.2d 76 (2000).
The district court's authority in juvenile dispositions is limited to utilization of currently existing programs or those for which the funding and machinery for implementation is in place. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).
The former North Carolina Juvenile Code (former G.S. 7A-516 et seq.) did not grant the district courts the authority to order
the State, through the Division of Youth Services, to develop and implement specific treatment programs and facilities for juveniles. In re Swindell, 326 N.C. 473, 390 S.E.2d 134 (1990).
Court Order May Not Exceed Court's Authority. - When a student has been lawfully suspended or expelled pursuant to G.S. 115C-391 and the school has not provided a suitable alternative educational forum, court-ordered public school attendance is not a dispositional alternative available to the juvenile court judge, absent a voluntary reconsideration of or
restructuring of the suspension by the school board to allow the student's restoration to an educational program within its system. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).
Delinquency Proceedings May Result in Commitment. - Juvenile proceedings to determine delinquency, though not the same as criminal prosecutions of an adult, may nevertheless result in commitment to an institution in which the juvenile's freedom is curtailed.
In re Meyers, 25 N.C. App. 555, 214 S.E.2d 268 (1975).
Dismissal of Petitions Against Juveniles Treated Unequally. - The trial court erred in not dismissing petitions against six juveniles who received unequal treatment relative to other juveniles who were alleged to have committed the same or similar offenses
by design, in that each respondent was prosecuted because he or she, or his or her parents, was unwilling or unable to pay $1,000 compensation to the victim, while the other juveniles, who were similarly situated, were not prosecuted
because they, or their parents, were able or willing to pay $1,000 thereto. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).
Interlocutory Order Not Appealable. - Because an order was best characterized as a temporary child custody order under G.S. ch. 50 rather than as a disposition order under G.S. ch. 7B, and was set for review in approximately four months, it was an interlocutory
order that did not affect any substantial right and was not appealable. In re N.T.S., 209 N.C. App. 731, 707 S.E.2d 651 (2011), review denied 365 N.C. 203,
710 S.E.2d 7, 2011 N.C. LEXIS 462 (N.C. 2011).
Lack of Jurisdiction Found. - Because a district court never exercised jurisdiction over defendant for the charge of conspiracy to commit armed robbery, the superior court that convicted him never obtained jurisdiction via transfer of the charge; because
the trial court lacked jurisdiction over defendant for the conspiracy charge, his conviction was vacated. State v. Jackson, 165 N.C. App. 763, 600 S.E.2d 16 (2004).
Applied in In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001); In re A.M., 192 N.C. App. 538, 665 S.E.2d 534 (2008); In re I.K., 227 N.C. App. 264, 742 S.E.2d 588 (2013); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013).
Cited in In re Wright, 137 N.C. App. 104, 527 S.E.2d 70 (2000); Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000); In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001); In re Eckard, 144 N.C. App. 187, 547 S.E.2d 835 (2001); In re Hartsock, 158 N.C. App. 287, 580 S.E.2d 395 (2003); In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003); In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re N.B., 183 N.C. App. 114, 644 S.E.2d 22 (2007); In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007); In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008); In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010); In re B.S.O., 225 N.C. App. 541, 740 S.E.2d 483 (2013); In re T.J.F., 230 N.C. App. 531, 750 S.E.2d 568 (2013); In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013); In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014); In re R.R.N., 233 N.C. App. 647, 757 S.E.2d 503 (2014), review denied 367 N.C. 524,
762 S.E.2d 213, 2014 N.C. LEXIS 622 (2014); In re P.A., 241 N.C. App. 53, 772 S.E.2d 240 (2015); State v. Watkins, 247 N.C. App. 391, 785 S.E.2d 175 (2016), review denied,
792 S.E.2d 508, 2016 N.C. LEXIS 672 (2016).
Opinions of Attorney General
Abuse Occurring in County Operated Secure Detention Facility. - The Department of Social Services has the authority to investigate an abuse complaint (involving a juvenile) which allegedly occurred in a county operated secure detention facility which is licensed by the North Carolina Office of Juvenile Justice. See Opinion of Attorney General to Mr. Lowell L. Siler, Esq., Deputy County Attorney, County of Durham, 2000 N.C. AG LEXIS 17 (9/11/2000).
§ 7B-101. Definitions.
As used in this Subchapter, unless the context clearly requires otherwise, the following words have the listed meanings:
-
Abused juveniles. - Any juvenile less than 18 years of age (i) who is found to be a minor victim of human trafficking under G.S. 14-43.15 or (ii) whose parent, guardian, custodian, or caretaker:
- Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means;
- Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means;
- Uses or allows to be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;
- Commits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile: first-degree forcible rape, as provided in G.S. 14-27.21; second-degree forcible rape as provided in G.S. 14-27.22; statutory rape of a child by an adult as provided in G.S. 14-27.23; first-degree statutory rape as provided in G.S. 14-27.24; first-degree forcible sex offense as provided in G.S. 14-27.26; second-degree forcible sex offense as provided in G.S. 14-27.27; statutory sexual offense with a child by an adult as provided in G.S. 14-27.28; first-degree statutory sexual offense as provided in G.S. 14-27.29; sexual activity by a substitute parent or custodian as provided in G.S. 14-27.31; sexual activity with a student as provided in G.S. 14-27.32; unlawful sale, surrender, or purchase of a minor, as provided in G.S. 14-43.14; crime against nature, as provided in G.S. 14-177; incest, as provided in G.S. 14-178; preparation of obscene photographs, slides, or motion pictures of the juvenile, as provided in G.S. 14-190.5; employing or permitting the juvenile to assist in a violation of the obscenity laws as provided in G.S. 14-190.6; dissemination of obscene material to the juvenile as provided in G.S. 14-190.7 and G.S. 14-190.8; displaying or disseminating material harmful to the juvenile as provided in G.S. 14-190.14 and G.S. 14-190.15; first and second degree sexual exploitation of the juvenile as provided in G.S. 14-190.16 and G.S. 14-190.17; promoting the prostitution of the juvenile as provided in G.S. 14-205.3(b); and taking indecent liberties with the juvenile, as provided in G.S. 14-202.1;
- Creates or allows to be created serious emotional damage to the juvenile; serious emotional damage is evidenced by a juvenile's severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others;
- Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the juvenile; or
- Commits or allows to be committed an offense under G.S. 14-43.11 (human trafficking), G.S. 14-43.12 (involuntary servitude), or G.S. 14-43.13 (sexual servitude) against the child.
- Repealed by Session Laws 2015-136, s. 1, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
- Caretaker. - Any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a juvenile in a residential setting. A person responsible for a juvenile's health and welfare means a stepparent; foster parent; an adult member of the juvenile's household; an adult entrusted with the juvenile's care; a potential adoptive parent during a visit or trial placement with a juvenile in the custody of a department; any person such as a house parent or cottage parent who has primary responsibility for supervising a juvenile's health and welfare in a residential child care facility or residential educational facility; or any employee or volunteer of a division, institution, or school operated by the Department of Health and Human Services. Nothing in this subdivision shall be construed to impose a legal duty of support under Chapter 50 or Chapter 110 of the General Statutes. The duty imposed upon a caretaker as defined in this subdivision shall be for the purpose of this Subchapter only.
- Clerk. - Any clerk of superior court, acting clerk, or assistant or deputy clerk.
- Repealed by Session Laws 2013-129, s. 1, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
- Court. - The district court division of the General Court of Justice.
- Court of competent jurisdiction. - A court having the power and authority of law to act at the time of acting over the subject matter of the cause.
- Criminal history. - A local, State, or federal criminal history of conviction or pending indictment of a crime, whether a misdemeanor or a felony, involving violence against a person.
- Custodian. - The person or agency that has been awarded legal custody of a juvenile by a court.
- Department. - Each county's child welfare agency. Unless the context clearly implies otherwise, when used in this Subchapter, "department" or "department of social services" shall refer to the county agency providing child welfare services, regardless of the name of the agency or whether the county has consolidated human services, pursuant to G.S. 153A-77 and shall include a regional social services department created pursuant to Part 2B of Article 1 of Chapter 108A of the General Statutes.
- Dependent juvenile. - A juvenile in need of assistance or placement because (i) the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or (ii) the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement.
- Director. - The director of the department of social services in the county in which the juvenile resides or is found, or the director's representative as authorized in G.S. 108A-14.
- District. - Any district court district as established by G.S. 7A-133.
- Family assessment response. - A response to selected reports of child neglect and dependency as determined by the Director using a family-centered approach that is protection and prevention oriented and that evaluates the strengths and needs of the juvenile's family, as well as the condition of the juvenile.
- Investigative assessment response. - A response to reports of child abuse and selected reports of child neglect and dependency as determined by the Director using a formal information gathering process to determine whether a juvenile is abused, neglected, or dependent.
- Judge. - Any district court judge.
- Judicial district. - Any district court district as established by G.S. 7A-133.
- Juvenile. - A person who has not reached the person's eighteenth birthday and is not married, emancipated, or a member of the Armed Forces of the United States.
- Neglected juvenile. - Any juvenile less than 18 years of age (i) who is found to be a minor victim of human trafficking under G.S. 14-43.15 or (ii) whose parent, guardian, custodian, or caretaker does not provide proper care, supervision, or discipline; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or the custody of whom has been unlawfully transferred under G.S. 14-321.2; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
- Nonrelative kin. - An individual having a substantial relationship with the juvenile. In the case of a juvenile member of a State-recognized tribe as set forth in G.S. 143B-407(a), nonrelative kin also includes any member of a State-recognized tribe or a member of a federally recognized tribe, whether or not there is a substantial relationship with the juvenile.
- Petitioner. - The individual who initiates court action, whether by the filing of a petition or of a motion for review alleging the matter for adjudication.
- Prosecutor. - The district attorney or assistant district attorney assigned by the district attorney to juvenile proceedings.
- Reasonable efforts. - The diligent use of preventive or reunification services by a department of social services when a juvenile's remaining at home or returning home is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time. If a court of competent jurisdiction determines that the juvenile is not to be returned home, then reasonable efforts means the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile.
- Responsible individual. - A parent, guardian, custodian, caretaker, or individual responsible for subjecting a juvenile to human trafficking under G.S. 14-43.11, 14-43.12, or 14-43.13, who abuses or seriously neglects a juvenile.
- Return home or reunification. - Placement of the juvenile in the home of either parent or placement of the juvenile in the home of a guardian or custodian from whose home the child was removed by court order.
- Safe home. - A home in which the juvenile is not at substantial risk of physical or emotional abuse or neglect.
- Serious neglect. - Conduct, behavior, or inaction of the juvenile's parent, guardian, custodian, or caretaker that evidences a disregard of consequences of such magnitude that the conduct, behavior, or inaction constitutes an unequivocal danger to the juvenile's health, welfare, or safety, but does not constitute abuse.
- Repealed by Session Laws 2013-129, s. 1, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
- Substantial evidence. - Relevant evidence a reasonable mind would accept as adequate to support a conclusion.
- Working day. - Any day other than a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions.
The singular includes the plural, the masculine singular includes the feminine singular and masculine and feminine plural unless otherwise specified.
History
(1979, c. 815, s. 1; 1981, c. 336; c. 359, s. 2; c. 469, ss. 1-3; c. 716, s. 1; 1985, c. 648; c. 757, s. 156(q); 1985 (Reg. Sess., 1986), c. 852, s. 16; 1987, c. 162; c. 695; 1987 (Reg. Sess., 1988), c. 1037, ss. 36, 37; 1989 (Reg. Sess., 1990), c. 815, s. 1; 1991, c. 258, s. 3; c. 273, s. 11; 1991 (Reg. Sess., 1992), c. 1030, s. 3; 1993, c. 324, s. 1; c. 516, ss. 1-3; 1997-113, s. 1; 1997-390, s. 3; 1997-390, s. 3.2; 1997-443, s. 11A.118(a); 1997-506, s. 30; 1998-202, s. 6; 1998-229, ss. 1, 18; 1999-190, s. 1; 1999-318, s. 1; 1999-456, s. 60; 2005-55, s. 1; 2005-399, s. 1; 2009-38, s. 1; 2010-90, ss. 1, 2; 2011-183, s. 2; 2012-153, s. 2; 2013-129, s. 1; 2013-368, s. 16; 2015-123, s. 1; 2015-136, s. 1; 2015-181, s. 21; 2016-94, s. 12C.1(d); 2016-115, s. 3; 2017-41, s. 4.3; 2018-68, s. 8.1(a), (b); 2018-75, s. 5(a); 2018-145, s. 11(d); 2019-33, s. 1; 2019-245, s. 6(a).)
Cross References. - As to support for adoptive families at risk of dissolution, see G.S. 48-1-110.
Editor's Note. - Subdivisions (2) and (7) were originally enacted by Session Laws 1998-229, s. 18 as subdivisions (1a) and (5a). The subdivisions have been renumbered at the direction of the Revisor of Statutes.
Session Laws 2012-153, s. 8, made the amendments to this section by Session Laws 2012-153, s. 2, applicable to offenses committed on or after December 1, 2012.
Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 1, applicable to actions filed or pending on or after October 1, 2013.
Session Laws 2013-368, s. 25, made the amendments to this section by Session Laws 2013-368, s. 16, applicable to offenses committed on or after October 1, 2013, and provides: "Prosecutions for offenses committed before the effective date of this act [October 1, 2013] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."
Session Laws 2015-136, s. 18, made the addition of subdivisions (8a) and (15a), and the deletion of subdivision (2) by Session Laws 2015-136, s. 1, applicable to actions filed or pending on or after October 1, 2015.
Session Laws 2015-181, s. 48, provides: "This act becomes effective December 1, 2015, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."
Session Laws 2015-181, s. 21,had updated statutory references in subdivision (1)(d).
Session Laws 2016-115, s. 6, made the amendment to subdivision (15) of this section by Session Laws 2016-115, s. 3, applicable to offenses committed on or after December 1, 2016.
Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"
Session Laws 2016-94, s. 39.7, is a severability clause.
Session Laws 2018-145, s. 11(d), effective December 27, 2018, repealed Session Laws 2018-75, s. 5, which had repealed sub-subdivision (1)g. of this section.
Session Laws 2019-245, s. 9(c), made the amendment of subdivision (3) of this section by Session Laws 2019-245, s. 6(a), effective December 1, 2019, and applicable to offenses committed on or after that date.
Session Laws 2019-245, s. 9(a), is a severability clause.
Effect of Amendments. - Session Laws 2009-38, s. 1, effective May 27, 2009, in subdivision (1)d., inserted "rape of a child by an adult offender, as provided in G.S. 14-27.2A" and "sexual offense with a child by an adult offender, as provided in G.S. 14-27.4A".
Session Laws 2010-90, ss. 1 and 2, effective July 11, 2010, rewrote subdivision (18a), which formerly read: "Responsible individual. - An individual identified by the director as the person who is responsible for rendering a juvenile abused or seriously neglected."; and added subdivision (19a).
Session Laws 2011-183, s. 2, effective June 20, 2011, substituted "Armed Forces" for "armed forces" in subdivision (14).
Session Laws 2012-153, s. 2, effective December 1, 2012, inserted "unlawful sale, surrender, or purchase of a minor, as provided in G.S. 14-43.14" near the middle of subdivision (1)d. For applicability, see editor's note.
Session Laws 2013-129, s. 1, effective October 1, 2013, deleted subdivisions (5) and (20); deleted "court or a person, other than parents or legal guardian, who has assumed the status and obligation of a parent without being awarded the legal custody of a juvenile by a" preceding "court" in subdivision (8); in subdivision (9), added "(i)" and "juvenile's," and substituted "(ii) the juvenile's" for "whose"; and added subsection (18b). For applicability, see editor's note.
Session Laws 2013-368, s. 16, effective October 1, 2013, substituted "G.S. 14-205.3(b)" for "G.S. 14-190.18" in sub-subdivision (1)d.; added sub-subdivision (1)g.; and made minor stylistic and punctuation changes throughout subdivision (1). For applicability, see editor's note.
Session Laws 2015-123, s. 1, effective January 1, 2016, deleted the former third sentence in subdivision (3), which read: " 'Caretaker' also means any person who has the responsibility for the care of a juvenile in a child care facility as defined in Article 7 of Chapter 110 of the General Statutes and includes any person who has the approval of the care provider to assume responsibility for the juveniles under the care of the care provider."
Session Laws 2015-136, s. 1, effective October 1, 2015, deleted former subdivision (2), relating to aggravated circumstances; and added subdivisions (8a) and (15a). For applicability, see editor's note.
Session Laws 2015-181, s. 21, effective December 1, 2015, updated statutory references in subdivision (1)(d). For applicability, see Editor's note.
Session Laws 2016-94, s. 12C.1(d), effective July 1, 2016, inserted "a potential adoptive parent during a visit or trial placement with a juvenile in the custody of a department" near the middle of subdivision (3).
Session Laws 2016-115, s. 3, effective December 1, 2016, inserted "or the custody of whom has been unlawfully transferred under G.S. 14-321.2" near the middle of subdivision (15). See editor's note for applicability.
Session Laws 2017-41, s. 4.3, effective March 1, 2019, added "and shall include a regional social services department created pursuant to Part 2B of Article 1 of Chapter 108A of the General Statutes" at the end of subdivision (8a); and deleted "county" preceding "department of social services" in subdivision (10).
Session Laws 2018-68, ss. 8.1(a), 8.1(b),effective October 1, 2018, added "(i) who is found to be a minor victim of human trafficking under G.S. 14-43.15 or (ii)" following "18 years of age" in subdivision (1); and rewrote subdivision (15).
Session Laws 2018-75, s. 5(a), effective December 1, 2018, in subdivision (1), deleted subdivision (1)g., and added the undesignated language at the end of the subdivision.
Session Laws 2019-33, s. 1, effective October 1, 2019, inserted "caretaker, or individual responsible for subjecting a juvenile to human trafficking under G.S. 14-43.11, 14-43.12, or 14-43.13," in subdivision (18a).
Session Laws 2019-245, s. 6(a), in subdivision (3), deleted "relative" preceding "entrusted with" in the second sentence; and made stylistic changes. For effective date and applicability, see editor's note.
Legal Periodicals. - For legislative survey on family and juvenile law, see 22 Campbell L. Rev. 253 (2000).
For article, "Failing to Serve and Protect: A Proposal for an Amendment to a Juvenile's Right to a Parent, Guardian, or Custodian During a Police Interrogation After State v. Oglesby," see 86 N.C.L. Rev. 1685 (2008).
For article, "The Nature of Abuse: Clerical v. Material Error: Where Does North Carolina Stand?," see 32 N.C. Cent. L. Rev. 226 (2010).
For article, "The Parentless Child's Right to a Permanent Family," see 46 Wake Forest L. Rev. 1 (2011).
For comment, "The Implications of In re L.M.T.: A Call to the North Carolina General Assembly to Reinstate Procedural Safeguards, a Parent's Right to Appeal, and the Importance of a Permanency Planning Order," see 38 Campbell L. Rev. 241 (2016).
For article, "In Re R.R.N.: Redefining 'Caretaker' for North Carolina Child Protective Services," see 40 Campbell L. Rev. 265 (2018).
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Abuse by Teacher. - Abuse by a teacher does not fall under the mandatory reporting duty. Ostwalt v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603 (W.D.N.C. 2008).
Constitutionality. - Former G.S. 7A-278 did not violate the equal protection clause of the United States Constitution by classifying and treating children differently from adults. In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).
Allowing a child to be adjudged undisciplined and placed on probation without benefit of counsel, while at the same time requiring counsel before a child may be adjudged delinquent, did not deny equal protection of the laws to the undisciplined child. In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).
Former G.S. 7A-289.32(2) and former G.S. 7A-517(21) (see now G.S. 7B-101(15)) did not violate constitutional standards of equal protection or definiteness. Department of Social Servs. v. Johnson, 70 N.C. App. 383, 320 S.E.2d 301 (1984).
"Caretaker" Limited. - In concluding that a stepfather's cousin was a child's caretaker, the trial court stretched G.S. 7B-101(3) beyond its intended scope, as the stepfather's cousin was simply a relative who sexually assaulted the child while the child was under the cousin's temporary supervision. The trial court erred in applying the Juvenile Code on these facts and in adjudicating the child abused and neglected. In re R.R.N., 233 N.C. App. 647, 757 S.E.2d 503 (2014), review denied 367 N.C. 524, 762 S.E.2d 213, 2014 N.C. LEXIS 622 (2014).
Court of appeals properly determined that the trial court erred in adjudicating a child abused and neglected because an adult relative was not the child's "caretaker" when he sexually abused her at his home during a sleepover because he was not entrusted with her care; the child's mother and stepfather responded appropriately, and thus, the abuse of the child by the adult relative did not warrant the State's intrusion into the family unit. In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).
Stepfather had no standing to appeal an adjudication and disposition order because (1) the stepfather was not the child's "custodian," as the stepfather was not awarded the child's custody, so the stepfather was the child's "caretaker," which included
a stepparent, and (2) G.S. 7B-1002(4), letting a "parent" appeal an order of adjudication and disposition, did not let a stepparent
appeal without showing the stepparent became the child's parent through adoption or was otherwise qualified. In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016).
"Community-Based Program". - Although the term "community-based program" is a term of art, its usage by the General Assembly reflects its concern that responses to the problems of the juveniles coming before the courts be fashioned in a flexible manner so as to address the best interests of the child in ways other than probation and commitment to training schools (now youth development centers). In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).
The term community ought to be interpreted in a broad manner, connoting an interrelationship among persons who live in the same general area, but who also share the same laws, rights, and interests. In re Brownlee, 301 N.C. 532,
272 S.E.2d 861 (1981).
"Custodian". - Definition of "custodian" in 7A-517(11) was, see now 7B-101(8), was much narrower than the previous definition. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 699,
349 S.E.2d 589 (1986).
"Dependent". - Trial court erred in adjudicating a mother's three-month-old son as dependent, pursuant to G.S. 7B-101(9), as the trial court's finding of fact that the mother was not willing to investigate the needs of her son in a safe environment, after the infant suffered a severe head trauma while in the father's sole care, was not supported by clear and convincing evidence; as the mother did not neglect her son, nor was he deemed abused, he was not dependent because he had a parent capable of providing care and supervision. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).
Children were dependent where the parents were neither able to care for them nor did they suggest appropriate alternate replacements; the father's proposed replacement was insufficient because there was no evidence that his aunt was willing or able to care for the children. In re D.J.D., 171 N.C. App. 230, 615 S.E.2d 26 (2005).
Trial court's findings supported its conclusion that the children were dependent under G.S. 7B-101(9) because it found that the mother could not care for her children without constant assistance, and that such assistance was not available to her. In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006), aff'd, cert. dismissed, in part, 362 N.C. 172, 655 S.E.2d 712 (2008), In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).
Clear, cogent, and convincing evidence in the record supported the findings that the minor child was dependent as defined by G.S. 7B-101, the mother failed to show the ability to properly parent the minor child and attend to his special needs, and the mother had not seen the minor child since January 2007 and had not given gifts or support or shown any love or affection for the child since she last saw him. The findings in turn supported the trial court's conclusions that the minor child was dependent and abandoned, both of which are statutory grounds for termination. In re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485 (2009).
Mother's children were properly adjudicated dependent because (1) the children's legal custodian died, and (2) the evidence supported a finding that no other appropriate relatives were available to provide care for the children. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).
Evidence supported termination of the father's parental rights; the child had been placed in the custody of Youth and Family Services (YFS) as a result of being adjudicated dependent, and the conditions which led to the child being placed in YFS custody were not necessarily tied to the fault of either parent, and instead, those conditions were based entirely on circumstances surrounding the child at the time he was adjudicated dependent, and the father made almost no effort to either establish himself as a parent who could provide for the child, nor did he arrange alternative child care arrangements. In re A.W, 237 N.C. App. 209, 765 S.E.2d 111 (2014).
Trial court erred by concluding that a child was dependent because its order did not include findings that addressed either prong of dependency; there were no findings that the parents' behaviors rendered them wholly unable to parent the child; there were no findings that the parents lacked an alternative child care arrangement. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).
Trial court erred in adjudicating a child as a dependent juvenile because he had an appropriate alternative child care arrangement with his half-brother, who was a responsible adult. In re C.P., 258 N.C. App. 241, 812 S.E.2d 188 (2018).
"Juvenile" - The rights afforded under former G.S. 7A-595 to be informed of Miranda rights, as well as to have a parent, guardian, or custodian present during questioning apply only to persons defined to be a juvenile under G.S. 7A-517 (see now this section).
State v. Brantley, 129 N.C. App. 725, 501 S.E.2d 676 (1998).
"Dependent Juvenile" - Trial court's finding of fact that the child's mother had not appropriately cared for him was not supported by clear and convincing evidence; similarly, the finding of fact that the mother was not willing to investigate the needs of the child in a safe environment was not supported by clear and convincing evidence. Further, the child was not neglected as to his mother; therefore, pursuant to G.S. 7B-101(9), the child was not dependent as to his mother because she was capable of providing care for and supervision of the child. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).
Trial court properly concluded that the children were dependent juveniles where the mother suffered from significant psychological conditions, the existence of which she did not dispute on appeal, and these conditions impaired her ability to parent the children; one doctor noted that the mother had suicidal ideation and tendencies, that she was in a chronic state of stimulus overload, that she suffers from Chronic Post Traumatic Stress Disorder, Major Personality Disorder, Major Depressive Disorder, and Dependent Personality Disorder and that these serious psychological problems impaired the mother's ability to parent. In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010).
Trial court did not err by adjudicating the mother's two children as dependent juveniles because the grandmother, as their legal custodian, was deceased, the mother did not present herself as a potential caregiver, and there were no appropriate family members immediately available to care for them long term. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).
Trial court's findings that the child was forced to sleep outside, bound to a tree, required to participate in a self-baptism, ordered to pray while the boyfriend brandished a firearm, struck with a belt all over his body, and repeatedly told that he was possessed by demons demonstrated that he was abused. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).
Child's dependency adjudication was erroneous because (1) the parties agreed such a decision would be based on the court's conversations with the child in chambers, and (2) nothing showed the child provided the court with any information about the child's father's ability to care for the child or was competent to do so. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015).
Child was not a dependent juvenile as required to terminate parental rights because she was not "in need of assistance or placement" at the time that the mother's petition to terminate a father's parental rights was filed since was in the legal and physical
custody of her mother. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).
"Neglect." - Because the trial court was acting under a misapprehension of the law, as it used the definition of "serious neglect" pertaining to the responsible individuals' list, as opposed to the definition of "neglect" pertaining to an adjudication of a juvenile as neglected, the trial court's adjudication of "serious neglect" was reversed, and the case was remanded for the trial court's consideration of neglect within the proper statutory framework. In re J.M. & J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).
Findings were insufficient to support a determination that the father had neglected his child because the father's incarceration alone could not serve as clear, cogent, and convincing evidence of neglect, the order did not establish that the father failed to comply with the domestic violence-related portions of his case plan or engaged in continued acts of domestic violence, trial court's finding that the father had submitted three diluted drug screens was insufficient to support a determination as to the likelihood of future neglect, and the trial court's finding that the father had not provided financially for the child, along with its determination that the father received SSI benefits and was not required to pay child support, did not support its finding of neglect. In re K.N., 373 N.C. 274, 837 S.E.2d 861 (2020).
Evidence supported the finding of neglect as to the mother's daughter; the mother did not act immediately to stop the daughter's sexual abuse by the mother's boyfriend, and the mother tried to discredit her daughter in therapy sessions and prioritized her relationship with her boyfriend before her daughter's welfare. The mother did not demonstrate a willingness or ability to ensure her daughter was protected. In re S.M.L., - N.C. App. - , - S.E.2d - (July 21, 2020).
Evidence did not support the finding of neglect as to the mother's son; the trial court relied on instances of the daughter's past sexual abuse to adjudicate the son neglected, but no findings were made of any risk of physical, mental or emotional impairment to the son or the presence of other factors supporting a conclusion that he was neglected. The only specific finding regarding the son was that he was happy and healthy. In re S.M.L., - N.C. App. - , - S.E.2d - (July 21, 2020).
Father could not contend that certain issues did not lead to the juvenile's adjudication as neglected because he stipulated to the findings of fact and consented to the child's adjudication as a neglected juvenile; therefore, one finding of fact, which was stipulated to by the father in the adjudication order, supported another finding of fact in the order terminating the father's parental rights in the child. In re O.W.D.A., - N.C. - , - S.E.2d - (Nov. 20, 2020).
Termination of the mother's rights on the grounds of neglect was supported by substantial evidence; the trial court determined that mother's last-minute progress was insufficient to outweigh her long-standing history of alcohol and substance abuse and domestic violence, as well as the impact these behaviors had on the children, and it was not error for the trial court to find that there likely would be a repetition of neglect in the future should they be returned to mother's care. In re H.A.J., - N.C. - , - S.E.2d - (Mar. 19, 2021).
Nature of Proceedings. - As the district court division has exclusive original jurisdiction of Juvenile Code matters, actions under the former Juvenile Code (formerly G.S. 7A-516 et seq.) are not special proceedings. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Jurisdiction. - The issuance and service of process is the means by which the court obtains jurisdiction; thus, where no summons was issued, the court acquired jurisdiction over neither the persons nor the subject matter of the action, and was without authority to enter order adjudicating a juvenile as neglected. In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997).
In dependency proceedings brought under G.S. 7B-101, the failure of a petition to list an allegedly dependent juvenile's address pursuant to G.S. 7B-402 did not deprive the trial court of jurisdiction because this was "routine clerical information," and the trial court could easily determine from information provided in the petition whether the court had subject matter jurisdiction over the case. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).
Trial court had subject matter jurisdiction over the juvenile petition filed by the caseworker even though the caseworker did not sign it and, thus, the trial court could enter its termination of parental rights order regarding the father; while the caseworker did not specifically state in the petition that the caseworker was an authorized representative of the director of the Department of Social Services, the caseworker's verification of the petition was sufficient for the trial court to exercise jurisdiction over the case. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).
In a case in which the court appointed custodians of a minor child filed a petition to terminate the parental rights of the child's mother, the trial court lacked jurisdiction because the custodians lacked standing. The custodians did not fit within any of the requirements under G.S. 7B-1103(a), and contrary to their argument, their status as custodians of the minor child did not give them the same rights as a guardian; G.S. 7B-1103 referred to both custody and guardianship, and it could not be held that the words custody and judicially appointed guardian as used in G.S. 7B-1103 were not intended to have specific, distinct meanings. In re B.O., 199 N.C. App. 600, 681 S.E.2d 854 (2009).
Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the
stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect.
In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Federal & State Interrelationships. - G.S. 7B-200(a) states that the court has exclusive, original jurisdiction over any case involving a juvenile who
is alleged to be abused, neglected, or dependent; the statute defines "court" as the district court division of the General Court of Justice - that is, state district court, not federal district court. G.S. 7B-101(6).
Wood v. Mecklenburg County Dep't of Soc. Servs., - F. Supp. 2d - (W.D.N.C. Aug. 18, 2008).
Limits to Agency Interference With Parent-Child Relationship. - Before subjecting families to ongoing Department of Social Services supervision and an array of possible adverse collateral consequences that can flow from an adjudication of abuse or neglect
trial courts should consider the purposes of the Juvenile Code when determining whether intervention is necessary to protect the welfare of the child. In re R.R.N., 368 N.C. 167,
775 S.E.2d 656 (2015).
Applicability To Termination Proceedings. - Although G.S. 7B-101(9), G.S. 7B-1111(a)(6) concerned dependency, those provisions are applicable to termination of parental rights proceedings where neglect is pursued. In re L.W., 175 N.C. App. 387, 623 S.E.2d 626 (2006), review denied, appeal
dismissed, 360 N.C. 534, 633 S.E.2d 818 (2006).
Amendment to a juvenile petition alleging abuse, neglect, and dependency to add allegations of sexual abuse did not change the nature of the conditions upon which the petition was based in violation of G.S. 7B-800,
because the amendment did not change the nature of the condition DSS had already alleged, abuse under G.S. 7B-101(1). In re M.G., 363 N.C. 570,
681 S.E.2d 290 (Aug. 28, 2009).
Findings of Fact Required. - Trial court erred in concluding that a child was dependent because the trial court made no findings of fact concerning the mother's ability to provide care or supervision for the child or that the mother lacked an alternative child care arrangement to support the court's conclusion that the child was dependent. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
Trial court erred in terminating parental rights on the ground of neglect because the termination order contained no finding of a probability of a repetition of the neglect, which led to the child's removal from the parents' care; the record contained evidence that could support, although not compel, a finding of neglect, but without further fact-finding, the court of appeals could not determine whether the trial court's conclusions were supported by its findings. In re L.L.O., 252 N.C. App. 447, 799 S.E.2d 59 (2017).
Trial court erred by, in effect, removing custodial grandparents from a juvenile proceeding because (1) the grandparents were mandatory parties to the proceeding, and the court did not enter the findings statutorily required when discharging a party from
a proceeding. In re J.R.S., 258 N.C. App. 612, 813 S.E.2d 283 (2018).
Findings of Fact Conclusive on Appeal. - Mother's testimony during the adjudication hearing fully supported the trial court's challenged findings of fact, and therefore those findings were conclusive on appeal In re A.N.L.,
213 N.C. App. 266, 714 S.E.2d 189 (2011).
Findings and Verbatim Allegations. - Findings in this neglect case contained some verbatim allegations, plus 15 additional findings that were not verbatim allegations and were properly considered; the trial court was cautioned that its order had to reflect
an adjudication, not mere one-sided recitations of allegations presented at the hearing. In re M.K., 241 N.C. App. 467, 773 S.E.2d 535 (2015).
Subsequent Custody Denied. - Plaintiff did not have standing to seek custody of his biological children as an "other" person under G.S. 50-13.1(a) where his parental rights were previously terminated for neglect. Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).
Definition of "Neglected Juvenile" Not Unconstitutional. - The statutory definition of a "neglected juvenile" in former G.S. 7A-517 was not unconstitutional by reason of vagueness, nor does it violate constitutional safeguards as to equal protection. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).
Former G.S. 7A-517(21) (see now G.S. 7B-101(15)) of this section is not unconstitutionally vague. In re Moore, 306 N.C. 394, 293
S.E.2d 127 (1982), appeal dismissed, 459 U.S. 1139, 103 S. Ct. 776, 74 L. Ed. 2d 987 (1983).
The determination of neglect requires the application of the legal principles set forth in former G.S. 7A-517(21) (see now G.S. 7B-101(15)) and is therefore
a conclusion of law; appellate review of a trial court's conclusions of law is limited to whether they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
Classification of Neglected Children Is Reasonable. - The classification of neglected children by former G.S. 7A-517 is founded upon reasonable distinctions, affects all persons similarly situated without discrimination, and has a reasonable relation
to the public peace, welfare and safety. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d
223 (1982).
"Abandonment" Defined. - Abandonment imports any willful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. Abandonment has also been defined
as willful neglect and refusal to perform the natural and legal obligations of parental care and support. It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection,
and willfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child. In re APA, 59 N.C. App. 332, 296 S.E.2d 811 (1982).
Neglect Based on Abandonment. - Mother neglected child by way of abandonment where the mother had wilfully refused to perform her obligations as a parent, had withheld her presence, love, care, and opportunity to display filial affection from the child,
and failed to financially contribute to the support of the child for a significant period of time. In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003).
Definitions Not Mutually Exclusive. - A child may be both "dependent" and "neglected" within the definitions of former G.S. 7A-517(13) and (21) (see now G.S. 7B-101(9) and (15)). Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).
Abused Juvenile. - In an adjudication, disposition, and permanency planning order concluding that the son was an abused juvenile, because the binding findings of fact established that the son sustained multiple non-accidental injuries and the father was responsible for the injuries, the trial court did not err in concluding that the son was an abused juvenile. In re J.M. & J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).
Trial court did not in finding that a child was an abused juvenile where she had undergone five invasive examinations before she was four years old based on the mother's and grandmother's claims of sexual abuse, and although two child welfare agencies found no signs of physical or sexual abuse, they reported that the child displayed signs of emotional abuse. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).
Lack of Parental Concern. - An individual's lack of parental concern for his child is simply an alternate way of stating that the individual has failed to exercise proper care, supervision, and discipline as to that child. Clark v. Williamson,
91 N.C. App. 668, 373 S.E.2d 317 (1988).
Any child whose physical, mental or emotional condition has been impaired or is in danger of becoming impaired as a result of the failure of his or her parent to exercise that degree of care consistent with the normative standards imposed upon parents
by society may be considered neglected. In re Thompson, 64 N.C. App. 95, 306 S.E.2d 792 (1983).
A child who is found to have been disciplined so severely that bruises and internal abrasions result is a "neglected" juvenile. In re Thompson, 64 N.C. App. 95, 306 S.E.2d 792 (1983).
To deprive a child of the opportunity for normal growth and development is perhaps the greatest neglect a parent can impose upon a child. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed
and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).
Refusal to Educate as Neglect. - It is fundamental that a child who receives proper care and supervision in modern times is provided a basic education. A child does not receive "proper care" and lives in an "environment injurious to his welfare" when
he is deliberately refused this education, and he is "neglected". In re McMillan, 30 N.C. App. 235, 226 S.E.2d 693 (1976); In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).
Failure to Provide Medical Care or Remedial Care Constitutes Neglect. - This section provides that if a child is not provided necessary medical care, it is neglected. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).
Child with a severe speech defect which could be treated by medical or other remedial care, as well as a hearing defect, which problems could be overcome with proper treatment and therapy which were available to child without expense to her mother, was "neglected" where her mother refused to permit her to receive this opportunity to progress toward her full development. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).
A finding of neglect by clear and convincing evidence was proper where the children were kept at home, and they did not receive proper medical care, supervision, or adequate nutrition. In re Bell, 107 N.C. App. 566, 421 S.E.2d 590, appeal withdrawn, 333 N.C. 168, 426 S.E.2d 699 (1992).
Clear, cogent, and convincing evidence supported a conclusion that a child did not receive proper care and supervision, and that the neglect was likely to result in physical, mental, or emotional impairment, or a substantial risk of such impairment under G.S. 7B-101(15) as: (1) a mother had over two years to work on a case plan with a department of social services and had ample time to follow through with the services designed to assist her in learning to parent; (2) the mother had attended only one mental health appointment and had not participated in vocational rehabilitation; (3) a father missed a psychological evaluation despite a social worker's efforts to provide transportation; (4) the service providers were unable to make contact with the parents; and (5) the parents delayed seeking medical attention for the child after a social worker telephoned the father and told him about the need to take the child to a pediatrician. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Even accepting the parents' argument that they did not inflict a child's broken ribs, because they either failed to notice their baby's extensive injuries and pain, or noticed but ignored them, their failure to obtain medical attention constituted neglect per G.S. 7B-101(15). In re S.W., 187 N.C. App. 505, 653 S.E.2d 425 (2007).
It was not in the children's best interests to return home where the children were neglected as the mother tried to hit the father with a board, missed, and struck the two-month old child in the head, and the parents failed to seek medical treatment for that injury or for the child's other medical conditions; In re A.R., 227 N.C. App. 518, 742 S.E.2d 629 (2013).
Trial court did not err in adjudicating the second child dependent and neglected as the mother was unable to provide for the second child's care or supervision and lacked an appropriate alternative child care arrangement, and her actions placed the child
at a substantial risk of some physical, mental, or emotional impairment because, while the second child was in the mother's custody, she continuously failed to obtain meaningful mental health services for the child that could have
prevented or mitigated the child's need for repeated hospitalizations at a psychiatric hospital; she greatly minimized and denied the seriousness of the child's condition; and the mother even exacerbated the child's condition.
In re C.B., 245 N.C. App. 197, 783 S.E.2d 206 (2016).
Failure to Provide Clean Home and Child Care. - Failure of parents, during the three months additional time allowed to them to make improvements, to provide a clean and suitable home for their children and to provide for appropriate child care when they
were absent, was strong supporting evidence for the conclusion that the children were genuinely neglected within the terms of subdivision (21) of this section. In re Black, 76 N.C. App. 106, 332 S.E.2d 85 (1985).
The inability to maintain secure living arrangements is relevant to a determination of whether there is a substantial risk of injury to the juvenile. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
Trial court did not err by concluding that grounds existed to terminate a father's parental rights because the evidence and findings of fact supported its determination that the father lacked the willingness or ability to establish a safe home for his
child; the father's parental rights to another child had been involuntarily terminated, and his mental health concerns did not allow him to provide a safe home. In re N.G., 374 N.C. 891,
845 S.E.2d 16 (2020).
Neglect may be manifested in ways less tangible than failure to provide physical necessities. Therefore, on the question of neglect, the trial judge may consider, in addition, a parent's complete failure to provide the personal contact, love, and affection
that inheres in the parental relationship. In re APA, 59 N.C. App. 322, 296 S.E.2d 811 (1982).
Findings Regarding Neglect. - Because the trial court's findings of fact support its legal conclusions that the juveniles were neglected, the lack of findings in the adjudication order regarding the mother's fault or culpability in contributing to the adjudication of neglect was immaterial. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).
Termination of the mother's parental rights based on neglect was proper; issues of inappropriate discipline and domestic violence remained, the mother had not secured her own housing, and the findings supported the conclusion that there was a high probability of the repetition of neglect if the children were returned to the mother's care. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).
Even assuming findings in the trial court's prior orders sufficed to support the corresponding adjudicatory findings, the findings did not support the conclusion that the children were neglected juveniles; the fact that the mother verbally attacked the school bus driver and blocked children from boarding did not support a neglect determination, nor did the children's absences from school, which did not show the children were being denied an education. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).
Unchallenged findings were sufficient to support a conclusion that the child was neglected where they established that the mother's improper care of the child and repeated allegations of sexual abuse exposed the child to harmful medical procedures, creating an environment injurious to her welfare. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).
Grounds existed to terminate the father's parental rights based on neglect where although the father had made some progress toward completing his court-ordered case plan, his success was extremely limited and insufficient in light of the child's placement in state custody for over two years. In re J.C.L., 374 N.C. 772, 845 S.E.2d 44 (2020).
In a case in which the mother's sister transferred alcohol into water bottles, her brother grabbed some water bottles that he believed were unopened from the kitchen, the mother fed the child formula that she prepared using one of the water bottles, and the child suffered acute alcohol intoxication, the findings of fact in the trial court's order did not support its conclusion of law that the child was a neglected juvenile because the findings, such as they were, supported a determination that a tragic and unfortunate accident occurred - an accident which might have been preventable with the benefit of hindsight, but which the mother had no way of knowing would occur, nor had any means to prevent it, absent some form of precognition. In re V.M., - N.C. App. - , - S.E.2d - (Sept. 1, 2020).
Findings that the child's home is clean and that she is well fed and clothed are not dispositive on the issue of neglect. In re Thompson, 64 N.C. App. 95, 306 S.E.2d 792 (1983).
Findings Supported Adjudication of Abuse and Emotional Impairment. - Findings of fact supported the conclusion that, as a result of the conflict between her parents, the child suffered serious emotional damage, evidenced by her anxiety and health issues, which was injurious to her welfare; findings regarding the child's emotional abuse being exacerbated by the father's anger, repeated attempts to demean and blame the mother, and pressure on the child during the custody dispute, supported an adjudication of abuse and emotional impairment necessary for an adjudication of neglect. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).
Determination of Child's Residence. - Child was living in the home of respondent mother even though the child resided in the hospital until the Department of Social Services intervened. In re A.B., 179 N.C. App. 605, 635 S.E.2d 11 (2006).
Evidence of abuse of another child in the home is relevant in determining whether a child is a neglected juvenile; however, the removal of all other children from the home once a child has either died or been subjected to sexual or severe physical abuse is not required. In re Nicholson, 114 N.C. App. 91, 440 S.E.2d 852 (1994).
Trial court properly adjudicated a mother's son a neglected child because the trial court was permitted, although not required, to conclude that the son was neglected based on evidence that the mother had abused her daughter by intentionally burning her six months earlier; the mother was arrested and charged with felony child abuse days before the son's birth and less than three months before the adjudication order. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).
Trial court did not err in adjudicating the first child neglected because the mother allowed the child to be continually exposed to the second child's erratic, troubling, and violent behavior; she failed to obtain meaningful medical services for the second
child while she was in her custody that could have mitigated that behavior; and she showed no concern for the effect the second child's behavior might have on the first child. In re C.B., 245 N.C. App. 197, 783 S.E.2d 206 (2016).
One communication in a two-year period does not evidence the personal contact, love, and affection that inheres in the parental relationship. In re Graham, 63 N.C. App. 146, 303 S.E.2d 624, cert. denied,
309 N.C. 320, 307 S.E.2d 170 (1983).
A parent's insistence on attempting to teach a mentally retarded child himself constitutes neglect, if it denies that child the right to attend special education classes critical to the child's development and welfare. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).
Trial court did not err in finding that 15 year old with an IQ of 41, who had been taken out of public school and was being taught at home by his father, was neglected, in granting legal custody to the Department of Social Services, and in ordering the
child to be returned to public school. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).
Jury Instructions. - In a case in which defendant was convicted of misdemeanor child abuse for inflicting physical injuries on his son with a paddle, the trial court committed reversible error when it struck a proposed instruction defining "moderate punishment"
as punishment which caused lasting injury to the child. The instruction allowed the jury to convict if it determined that the punishment administered by defendant was not "moderate," without giving further guidance as to what constitutes
"moderate" punishment, except that the jury was to use their own reason and common sense. State v. Varner, 252 N.C. App. 226, 796 S.E.2d 834 (2017).
Evidence Considered. - Trial court could be presumed to have disregarded the incompetent evidence because the trial court made no findings pertaining to hearsay evidence in support of its adjudication of neglect and dismissed the sexual abuse allegation,
and the trial court was authorized to consider the hearsay evidence and other evidence to show propensity in its dispositional order. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d
316 (2015).
Evidence of Neglect Sufficient to Withstand Motion to Dismiss. - The petitioner offered substantial evidence sufficient to withstand a motion to dismiss where the evidence presented, taken in the light most favorable to petitioner, amounted to the following: (1) that respondent's eight year-old daughter had been left alone for approximately three and a half hours by respondent as a form of discipline; (2) that she was found to have a cut on her lip and bruising on her face; (3) that respondent's boyfriend had spanked her at church when she misbehaved, and had grabbed her face and hit her face when they arrived home; (4) that respondent's boyfriend had punched holes in the walls, and that he had once cracked the car windshield with his fist while the children were in the vehicle; (5) that respondent was completely uncooperative with petitioner; (6) that respondent's son had a wound on his upper lip which respondent insisted was a cold sore but was later determined to be an infected cut; and (7) that respondent had a blackened eye. In re Gleisner, 141 N.C. App. 475, 539 S.E.2d 362 (2000).
Although G.S. 7B-101(15) was silent on whether a juvenile to be adjudicated as neglected had to sustain some injury as a result of neglect, there had to be some
physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline; and where there was no finding that the juvenile
had been impaired or was at substantial risk of impairment, there was no error if all the evidence supported such a finding. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).
Evidence of Abuse and Neglect Sufficient to Withstand Motion to Dismiss - Trial court did not err in denying the mother and father's motions to dismiss filed at the close of the county welfare agency's case and the close of all of the evidence, as the
evidence that the older daughter was abused and the younger daughter was neglected was supported by evidence sufficient to withstand their motions to dismiss. In re Morales, 159 N.C. App. 429, 583 S.E.2d 692 (2003).
Evidence Held Sufficient to Show Neglect. - There was ample clear, cogent and convincing evidence that a juvenile's injuries were the result of nonaccidental means, that her injuries were "intentionally" inflicted upon her and that, therefore, she was neglected, despite mother's alleged love and devotion. In re Hughes, 74 N.C. App. 751, 330 S.E.2d 213 (1985).
Facts that father had little if any contact with his daughter in the year before he murdered his daughter's mother; that since the murder, father had been incarcerated; that father had twice given his consent for the child's adoption by his sister and her husband; that father had known that the child was in petitioners' custody and had nevertheless made no effort to contact petitioners, to send support for daughter to petitioners, or to establish any verbal or written communication with the child, supported the trial court's conclusion that father "acted in such a way as to evince a lack of parental concern for the child" and were sufficient to constitute neglect pursuant to G.S. 7A-289.32(2) [see now G.S. 7B-1111(a)(1)] and 7A-517(21) [see now G.S. 7B-101(15)]. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).
The evidence before the trial court was sufficient to support its findings of abuse and neglect where: (1) Child, while in respondent's sole care, suffered multiple burns over a wide portion of her body; (2) no accidental cause was established, and the child in fact stated that respondent burned her; (3) the burns were serious, requiring prompt medical attention; (4) respondent did not seek treatment for the child's injuries and refused to permit social worker to do so; and (5) the child was taken for treatment only upon the intervention of the sheriff's department, over respondent's opposition. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).
Child held to be a neglected juvenile where the child was substantially at risk due to the instability of her living arrangements, the mother and child moved at least six times during the four months the mother retained custody, the child was substantially at risk through repeated exposure to violent individuals, one of whom used cocaine, and where the environment in which the mother and child lived was injurious in that it involved drugs, violence, and attempted sexual assault. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
Where mother had a severe alcohol problem, had driven while under the influence with her minor children as passengers, became intoxicated at home to the point of falling down and becoming unable to care for her younger children, and her drinking contributed to her children's emotional problems evidence was sufficient to show neglect. Powers v. Powers, 130 N.C. App. 37, 502 S.E.2d 398 (1998).
Evidence supported a trial court's finding that father abused, neglected, or negligently provided care for his three-month old child where it showed that: (1) the father lived with the child; (2) the father knew his son had a medical condition; (3) the father took the child to the hospital; (4) the father left the hospital on a second occasion without the child being seen; (5) the father did not obtain subsequent medical treatment for his son; and (6) the child's injuries were serious and had been inflicted over a period of time. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).
Evidence was sufficient to support a finding that the parents of a three-month old child abused, neglected, or negligently cared for the child where it showed that: (1) the parents could not reconstruct who cared for the child for days, or even weeks; (2) the parents failed to furnish a detailed account or proper medical history to explain the child's injuries; (3) both parents knew that the child had a medical condition; (4) the second time the child was taken to the hospital the parents left the hospital without the child being seen because they were tired of waiting; (5) the child's injuries were serious; and (6) the child's injuries were inflicted over a period of time. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).
Trial court properly terminated the father's parental rights on the ground that the father neglected the children, because the father expressed some interest in visitation rights, but only if a paternity test showed that the father was one child's biological father. In re Mills, 152 N.C. App. 1, 567 S.E.2d 166 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 627 (2003).
Where (1) a mother did not keep medical appointments for a child, resulting in the child's uncontrollable behavior; (2) children were unattended; (3) the children's school could not contact the mother; (4) a child was sleep-deprived and hungry; and (5) while the mother was incarcerated, the children were padlocked in their rooms without bathroom access and the refrigerator was padlocked, the evidence was sufficient to support the trial court's adjudication of the children as neglected, under G.S. 7B-101(15). In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).
Trial court's determination that that mother neglected the child was supported by evidence that the mother failed to provide any parental guidance, personal contact, love or custodial/spiritual support for at least six months prior to the filing of the grandmother's petition. Lechuga v. Ore (In re Ore), 160 N.C. App. 586, 586 S.E.2d 486 (2003).
Evidence that a father, who had been incarcerated since his child's birth, had not provided any financial support for the child from his compensation for his prison employment, had not sought personal contact with the child or attempted to convey love or affection to the child, and did not inquire about the child in his infrequent correspondence with the child's mother, showed the father neglected the child, as defined in G.S. 7B-101(15), allowing termination of his parental rights, under G.S. 7B-1111(a)(1). In re Bradshaw, 160 N.C. App. 677, 587 S.E.2d 83 (2003).
Testimony of a pediatrician and a mental health professional was sufficient evidence of child abuse to support the trial court's finding that two minor children were abused and neglected children, and that the children's placement and care was the responsibility of the county department of social services. In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584 (2004), appeal dismissed, - N.C. - , 603 S.E.2d 884 (2004).
Noting that the neglect statute, G.S. 7B-101(15), afforded a trial court some discretion in determining the weight to be given evidence of a past adjudication of neglect and the likelihood of its continuation in the future, an appeals court held that the trial court's findings of fact, which included a 16 year old mother's prior adjudication of neglect, marijuana use, and her demonstrated inability to care for an infant, supported the conclusion that the child was a neglected child. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).
Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her psychological problems, and (5) abuse and neglect adjudication regarding an older daughter. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).
Where the evidence showed that a child resided in the same home where four other children had been neglected, this fact was sufficient to support a finding that the child was being neglected under G.S. 7B-101(15); although the father was in jail, the mother was accused of the previous neglect. In re P.M., 169 N.C. App. 423, 610 S.E.2d 403 (2005).
Trial court did not abuse its discretion in terminating a mother's parental rights based on neglect where: (1) the mother failed to maintain stable housing and was unemployed, (2) the mother failed to comply with a child support order, (3) the mother had left the child with others, including an incident initiating the child's removal from her custody, (4) the mother failed to provide proper medication for the child, (5) the mother had attempted suicide, had not cooperated with social workers, did not follow through with mental health counseling, and did not complete parenting classes, and (6) the mother only sporadically visited and contacted the child for over five years. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300 (2005).
When it was alleged that a mother's parental rights to two children should be terminated because she (1) neglected them while they were in an agency's care within the meaning of G.S. 7B-101, under G.S. 7B-1111(a)(1), (2) willfully left the children in foster care for more than 12 months without showing reasonable progress to correct the conditions that led to their removal, under G.S. 7B-1111(a)(2), and (3) willfully failed to pay a reasonable portion of the cost of the children's care while in an agency's custody, under G.S. 7B-1111(a)(3), and the petition was sustained on all three grounds, when the mother objected to findings as to only one ground on appeal, the other findings were binding, under N.C. R. App. P. 10, and, as only one ground had to be found to terminate parental rights, it was unnecessary to consider the mother's appellate argument as to the ground she challenged. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005).
Social services department presented clear, cogent, and convincing evidence from which the trial court could find and conclude that child was at risk of some physical, mental, or emotional impairment where the mother kept the child at her cousin's home in a filthy room with clothes and dirty diapers strewn about, she would leave the home for several days at a time and, upon her return, she would sleep for long periods of time with the child in the bed and would not awaken when the child cried, the mother came home drunk or under the influence of drugs on one occasion and attempted to remove the child from the home in the middle of the night, and the mother was unable to complete a substance abuse treatment program because of frequent altercations with other residents. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
In a termination of parental rights hearing, clear, cogent and convincing evidence showed a mother's children were neglected, as defined in G.S. 7B-101(15), for purposes of termination, as the mother did not (1) complete classes in parenting, budgeting, and homemaking, (2) obtain mental health counseling, (3) have a phone, or (4) keep a clean home, all as required by her case plan, and she offered no specific plan for the children's care while she worked, if they were returned to her, and her residential instability was shown. In re J.W., 173 N.C. App. 450, 619 S.E.2d 534 (2005), aff'd, 360 N.C. 176, 625 S.E.2d 780 (2006).
Admittedly, there was not testimonial evidence that a mother failed to provide consistent financial support to the minor child. However, when compared to the overwhelming, substantive evidence supporting findings of fact four and five, that the mother physically harmed the minor child by hitting her with a belt and failed to consistently attend assigned mental health sessions as she only attended five of 10 sessions, and finding of fact six, that the mother failed to regularly visit the minor child, the substantive evidence supported the trial court's conclusion that the minor child was neglected pursuant to G.S. 7B-101(15). In re A.J.M., 177 N.C. App. 745, 630 S.E.2d 33 (2006).
Trial court's order concluding that a mother's children were neglected and ordering the continued legal custody of the children with a state agency was affirmed because the trial court's findings supported its conclusion of law that the children were neglected juveniles under G.S. 7B-101(15); the findings included instances of drug abuse and domestic violence by the mother and the father of one of her children. In re T.S., 178 N.C. App. 110, 631 S.E.2d 19 (2006), aff'd, 361 N.C. 231, 641 S.E.2d 302 (2007).
Trial court's conclusion that the father neglected both children because the minor children did not receive proper care or supervision and they lived in an environment injurious to their welfare was proper where the father admitted that he had been required to call the police because the mother had been throwing things. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817 (2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).
Evidence sufficiently supported the trial court's finding that the mother's children were neglected, including that the mother delayed taking the one child for medical treatment for the one child's bruises because of the mother's fear that the county social services agency would take custody of the children and that the other two children had disciplinary and developmental problems while in the mother's care. In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007).
Trial court did not err in concluding that the minor child was a neglected juvenile, as the allegation in the petition that the minor child was neglected because the minor child lived in an environment injurious to the minor child's welfare was proven by clear and convincing evidence; indeed, the evidence showed that the minor child's older sibling was adjudicated abused and neglected because the mother's boyfriend, who was cohabitating with the mother at the time of the abuse, pled guilty to several felony sex offenses. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).
Adjudication of neglect was supported by evidence that the mother admitted to "thumping" the five-year-old daughter in the face hard enough with a finger to leave a bruise shaped like the mother's finger, the bruising of the four-year-old child's upper leg was from a severe blow delivered by his stepfather with a brush, respondents' effort to convince the younger child to lie about what happened to cause the bruise on his leg, the fact that the older child told the social worker that the bruise on her face came from falling in the bathtub, the same lie respondents tried to exact from the younger child, and the mother's admission that she left the younger alone in the bathtub every night for 20 to 30 minutes. In re L.T.R., 181 N.C. App. 376, 639 S.E.2d 122 (2007).
Trial court properly adjudicated a child to be a neglected juvenile where the testimony showed that the mother had left the child alone in a motel room when she was only 16 months old. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).
Fact that the mother admitted to using cocaine for at least two months prior to the child's birth, the mother and the child tested positive for cocaine at the time of the child's birth, that there were incidents of domestic violence between respondents, and that the mother refused to sign a safety assessment plan, provided clear and convincing evidence supporting a finding of neglect. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007).
Mother's parental rights were properly terminated because the district court's findings that the mother changed employment every couple of months and had transportation problems that contributed to the mother's employment issues and the mother's difficulties in visitation with all of her children supported a determination that the child at issue was neglected under G.S. 7B-101. In re J.T.W., 361 N.C. 341, 643 S.E.2d 579 (2007).
Sufficient evidence supported the conclusion that a mother neglected the mother's child under G.S. 7B-101(15) and G.S. 7B-1111(a)(1) because the mother failed to stop substance abuse after the children were removed from the home and failed to meet their basic needs during a trial period. In re C.T., 182 N.C. App. 472, 643 S.E.2d 23 (2007).
Child living with the maternal grandmother at the time a county department of social services' petition for neglect was filed was properly adjudicated neglected under G.S. 7B-101(15) because the relevant question was fitness of the child's mother to care for the child at the time of the proceedings; evidence showed the mother was not fit at that time. In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010).
Findings relating to the prior adjudication of neglect and subsequent termination of parental rights as to the parents' first child and the parents' failure to comply with their case plan, when combined with the parents' failure to acknowledge culpability for their first child's injuries, supported the conclusion that the child was a neglected juvenile based on the high risk of future abuse or neglect. In re N.G., 186 N.C. App. 1, 650 S.E.2d 45 (2007), aff'd, 362 N.C. 229, 657 S.E.2d 355 (2008).
Termination of a mother's parental rights to her two minor children was upheld on appeal where the unchallenged findings of fact made by the trial court established by clear, cogent, and convincing evidence in the record that the mother had willfully left her children in foster care without making reasonable progress to correct the conditions that led to their placement. The findings supporting that conclusion included: the children were in foster care for over 12 months; the mother missed seven out of eleven appointments and failed to complete a substance abuse treatment program; missed five out of ten parenting classes; tested positive for drugs several times; failed to establish a permanent residence and had been moving around from family and friends for a total of eight separate residences; failed to obtain employment; and failed to stay in contact with the Department of Social Services. In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008).
Termination of a father's parental rights was upheld on appeal since the father failed to challenge any of the findings of fact made by the trial court, namely that prior to the date the motion to terminate his parental rights was filed, he never established paternity over the minor child at issue, never legitimated the child by statute or marriage, nor had he provided any financial support. In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008).
Where the children were taken into custody based on a referral from a hospital after the parents engaged in a physical fight where not only were the children present, but the mother was holding her youngest child in arms, and the mother failed to complete a required parenting program, failed to attend individual counseling, and failed to address her substance abuse issues, the evidence supported the conclusion that the children were neglected under G.S. 7B-101. In re D.B., 186 N.C. App. 556, 652 S.E.2d 56 (2007), aff'd, 362 N.C. 345, 661 S.E.2d 734 (2008).
Father's encouragement of smoking, drinking, and marijuana use by his biological children supported a determination that they were neglected children, but did not constitute abuse. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).
Termination order was supported by clear, cogent, and convincing evidence based on the mother's unfitness to have custody, and the overwhelming evidence of neglect, including improper supervision of her children, inappropriate discipline, and the severely unsanitary condition of the family's home due to the many different farm animals living therein, as well as a roach infestation. Further, given evidence of the significant positive progress that the children made since they were taken from the mother's custody, termination was in the children's best interests. In re J.A.P., 189 N.C. App. 683, 659 S.E.2d 14 (2008).
Unchallenged findings showing that, inter alia, the mother's home had no heat, the mother had not seen the child for a significant period of time, and the mother had begun allowing a sex offender to live with the mother, supported a finding of neglect. In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008).
Clear and convincing evidence supported a trial court's finding that a minor child was neglected and dependent pursuant to G.S. 7B-101(9) and (15) because the child was in an injurious environment where her father continued to be present despite his agreement to stay away; because the child's mother was not seeking to enforce the Safety Assessment Plan the father signed, the county youth and family services found it necessary to obtain a Non-Secure Custody Order to protect the child. In re K.W., 192 N.C. App. 646, 666 S.E.2d 490 (2008).
Trial court did not err in terminating the parental rights of a mother and father because the record provided ample competent evidence to support the trial court's factual findings, and the findings of fact supported the trial court's conclusion of law, that their child was neglected and that it was probable that the neglect would be repeated. In re D.D., - N.C. App. - , - S.E.2d - (June 16, 2009).
Finding of neglect as to the mother under G.S. 7B-101(15) was supported by, inter alia, evidence that one child was locked outside for the home for a significant period of time even though the mother was home, two children frequently missed school, and the third child had not obtained routine immunizations and suffered from a yeast infection, eczema, and cradle cap. In re H.D.F., 197 N.C. App. 480, 677 S.E.2d 877 (2009).
Findings of fact supported the trial court's conclusion that the child was neglected pursuant to G.S. 7B-101(15) because, inter alia, the trial court found that the child's sister, who lived in the same home, had been physically abused, that the child's parents had engaged in acts of domestic violence in the child's presence, that the mother was subsequently attacked by the father, after which she received a domestic violence protective order but never ceased contact with the father, and that the mother had abused alcohol and/or controlled substances. In re D.B.J., 197 N.C. App. 752, 678 S.E.2d 778 (2009).
Clear and convincing evidence showed that children were neglected because the children were substantially at risk due to (1) one child's life-threatening injuries and the children's parents' explanations that were inconsistent with the injuries, (2) the instability and volatility of the children's living conditions, (3) the parents' deceptive natures, and (4) living in an injurious environment that involved violence. In re C.M., 198 N.C. App. 53, 678 S.E.2d 794 (2009).
Sufficient evidence supported the termination of a mother's parental rights because the child was properly found to be a neglected juvenile under G.S. 7B-101(15) since the mother failed to complete a substance abuse program and attended only 10 of 29 scheduled visits with the child and such neglect was likely to continue since the mother was engaged in substance abuse, lacked employment, and failed to obtain stable housing. In re S.C.R., 198 N.C. App. 525, 679 S.E.2d 905 (2009), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).
Child was a neglected juvenile under G.S. 7B-101(15) as a father grew and consumed marijuana in the home, engaged in domestic violence in the child's presence, choked the mother to unconsciousness while the child was in vitro, called a social worker by a derogatory word, and engaged in domestic violence with a prior spouse. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).
Mother's appeal of an order terminating the mother's parental rights to the mother's child pursuant to G.S. 7B-1111 was denied because the evidence was overwhelming in support of the initial finding that the child was neglected and would continue to be neglected if the mother regained custody; mother had failed to maintain a stable residence, was often in arrears on rent, and since August 31, 2006, there had been seven summary ejectment actions filed against the mother. In re K.J.L., 206 N.C. App. 530, 698 S.E.2d 150 (2010).
Because a father had visited his son infrequently failed to pay support, and would be incarcerated for five years or more, his parental rights to his son were terminated pursuant to G.S. 7B-1111(a) on the grounds that the father had neglected his son and had failed to provide any meaningful support for the son; termination of the father's parental rights would permit the son's stepfather to adopt the son and provide stability for the child. In re A.J.M.P., 205 N.C. App. 144, 695 S.E.2d 156 (2010).
Trial court did not err in terminating a father's parental rights to two children for neglect under G.S. 7B-1111(a)(1) and G.S. 7B-101(15), despite the progress the father made in a rehabilitation program during his incarceration. The father had exhibited a pattern of recovery and relapse regarding his addiction to crack-cocaine and marijuana, and the trial court properly considered that his success at rehabilitation while incarcerated was not indicative of how he would deal with his addiction once released. In re J.H.K., 215 N.C. App. 364, 715 S.E.2d 563 (2011).
Clear, cogent, and convincing evidence supported a trial court's termination of a mother's parental rights to her four-year-old child, based on neglect under G.S. 7B-1111(a)(1), because the mother failed to maintain stable employment and housing, had continued dependence on others to meet her basic needs, and the trial court had discretion to consider evidence that the mother's older child had been adjudicated a neglected child, pursuant to G.S. 7B-101(15); since the mother's release from jail in April 2008, she had five jobs and eight residences. In re C.G.R., 216 N.C. App. 351, 717 S.E.2d 50 (2011), review denied 365 N.C. 573, 724 S.E.2d 533, 2012 N.C. LEXIS 303 (2012).
Trial court did not err by concluding that children were neglected juveniles pursuant to G.S. 7B-101(15) because the children had never received any medical care while in the parents' home, and the father had beaten one of the children; the trial court properly considered evidence tending to show that the children's younger sister was an abused or neglected juvenile in determining whether the father and mother had neglected the children, and its findings of fact clearly established that the children lived in an environment that was injurious to their welfare. In re S.H., 217 N.C. App. 140, 719 S.E.2d 157 (2011).
Sufficient evidence supported the trial court's adjudication of neglect of a five-year-old child because the mother no longer attended mental health therapy, declined free daycare, did not allow access to her records to determine whether she was compliant with her mental health medication, and the mother's refusal to cooperate with the Department of Social Services placed the child at risk of substantial harm; one erroneous finding of fact by the trial court, which was based on hearsay, did not constitute reversible error. In re T.R.T., 225 N.C. App. 567, 737 S.E.2d 823 (2013).
District court did not err when it adjudicated both children neglected juveniles because the mother placed the children at a substantial risk of physical, mental, or emotional impairment as a consequence of her failure to provide proper care, supervision, or discipline as she felt so overwhelmed that she could not care for the children that she left them with their father, a person she believed was a substance abuser, without even interacting with him in person to assess his sobriety and current fitness to care for the children; and the mother had disciplined the younger child in such an inappropriate manner that he had been adjudicated an abused juvenile and the mother was charged with misdemeanor child abuse. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).
Trial court's determination that a child was a neglected juvenile was supported by the evidence because its findings supported the conclusion that the child was not receiving proper care and supervision under the mother's care and that he was living in an environment injurious to his welfare; the trial court found that the mother had problems with drugs and that she had previously injured the child while abusing drugs. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).
Evidence that the mother was physically assaulted by the father while pregnant and continued to allow the father to have contact with the children despite a protect order support a finding of neglect. In re J.W., 241 N.C. App. 44, 772 S.E.2d 249 (2015).
Competent evidence supported the trial court's findings in part that: the father engaged in aggressive and violent behaviors in the home, he hit one child in the mouth causing a busted lip, and he struck the other child at least once; these findings showed that the children lived in an environment injurious to their welfare and that they were at a substantial risk of physical, mental, or emotional impairment. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).
Findings supported the conclusion that all four children were neglected, as there was ample evidence to support the finding that the mother sustained bruises from her fall after being pushed by the father, the trial court found that the youngest two children did not need to be in the middle of a fight to be subjected to an injurious environment, and the evidence supported the finding that all four children knew about the physical altercations; the trial court did not act under a misapprehension of the law, as the findings sufficiently detailed the impacts the father's violence with the mother had on the children. In re M.K., 241 N.C. App. 467, 773 S.E.2d 535 (2015).
Child was properly adjudicated as neglected because (1) the child's male cousin's sexual improprieties with the child showed a lack of proper care, and (2) the child was present when adults used marijuana, slept with the cousin, and was passed between adults with no determination of fitness, showing substantial risk of harm. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015).
Because the evidence supported the trial court's findings that a minor child's father indicated an unwillingness to enter into a family services agreement, had never met with the child, and had no bond with the child, there was evidence to support the trial court's conclusion that the child was neglected by the father. Thus, there was evidence to terminate the father's parental rights on this statutory ground. In re C.L.S., 245 N.C. App. 75, 781 S.E.2d 680 (2016).
When the department took nonsecure custody of the children, all five were in the care of their grandmother, having no home, no electricity, no plumbing, and no food, and thus neglect was the same for all five children, and the availability of the boys' father, while relevant to an adjudication of dependency, had no bearing on an adjudication of neglect; the trial court could not have found that some of the children were neglected while others were not, and the trial court was to adjudicate the three boys, as well as the girls, neglected juveniles. In re Q.A., 245 N.C. App. 71, 781 S.E.2d 862 (2016).
Findings were sufficient for the trial court to conclude that the child was a neglected juvenile; he suffered an actual impairment due to his exposure to controlled substances, and the mother's erratic behavior and disregard for the domestic violence protection order against the father exposed the child to a substantial risk of impairment, and it was proper for a trial court to adjudicate a juvenile neglected, even if the juvenile never actually resided in the parent's home, as was the case here. In re G.T., 250 N.C. App. 50, 791 S.E.2d 274 (2016), aff'd, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (N.C. 2017).
Trial court's findings supported its conclusion that respondents' child was a neglected juvenile in that respondents failed to provide proper supervision for the child. Even if inflicted by the child on himself, the child's injuries were nevertheless the result of physical harm by other than accidental means that respondents allowed to occur due to their failure to maintain the child's medication and provide adequate supervision to meet the child's special needs. In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017).
Trial court did not err by adjudicating a child neglected because the parents failed to remedy the conditions that required the child to be placed with her sister in a safety plan, such that they were unable to provide the child with proper care. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).
Adjudication that the child was a neglected juvenile was affirmed because the prior orders entered into the record were not the sole basis for the trial court's decision; the child presently faced substantial risk in her living environment as the mother continued to fail to acknowledge her role in her rights being terminated to her six other children, she denied the need for any services for the child's case, and she became involved with the father, who had engaged in domestic violence, even though domestic violence was one of the reasons her other children were removed from her home; and the mother had not made sufficient progress in recognizing domestic violence warning signs, and in accurately assessing poor decisions from the past. In re J.A.M., 372 N.C. 1, 822 S.E.2d 693 (2019).
Child was neglected because the child's father was convicted for sexually abusing children and denied responsibility for those convictions, had persistent and serious mental health issues that affected the father's ability to parent the child, and lacked stable housing until shortly before the termination hearing. Furthermore, the district court found that there was a high probability that a repetition of neglect would occur in the future if the child were to be placed with the father. In re N.P., 374 N.C. 61, 839 S.E.2d 801 (2020).
Child was properly adjudicated dependent where although there was no evidence that the father had sexually abused her, the mother's allegations rendered him unavailable to provide care or supervision at the time of the petition. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).
Termination of the father's parental rights was proper on the ground of neglect because he failed to appreciably address his substance abuse issues; he had only shown an extended abstinence from cocaine use while incarcerated; he did not complete substance abuse treatment; he incurred serious felony charges during the pendency of the case and was convicted of discharging a firearm into occupied property; during his incarceration, he made no attempt to contact the child and had limited contact with the Department of Social Services; and he could not use his incarceration as a shield against a conclusion that there was a probability of future neglect. In re A.S.T., - N.C. - , - S.E.2d - (Nov. 20, 2020).
Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Evidence supported a finding of neglect under former G.S. 7A-517(21) where the trial court found that the respondent parents intended to live with their new infant in the home of the maternal grandparents where their previous child died; where the child's
father had been convicted of causing the infant's death; where the mother had been advised regarding the cause of this non-accidental death but continued to support the father's version of events; where the parents had neither
expressed nor exhibited any concern for the future safety of their newborn in their home; and where the father "extended most of the care for the juvenile" during the visits of the parents with the child. In re McLean,
135 N.C. App. 387, 521 S.E.2d 121 (1999).
Evidence Insufficient to Show Neglect. - Where at the time of termination proceedings, father was employed in a steady job for the first time in a number of years, had been alcohol free for over two years, had reduced his child support arrearage from $15,200 to $2,200, and had been paying $750 a month in child support ($500 in arrears and $250 to keep current), insufficient evidence existed to support a finding of neglect. Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).
The trial court's findings of fact did not support its conclusion that a child was neglected, where the trial court's finding that the mother did not provide the child with proper care, supervision, or discipline was more properly denominated a conclusion of law, and the court did not find that the child was impaired or at substantial risk of impairment. In re Everette, 133 N.C. App. 84, 514 S.E.2d 523 (1999).
Anonymous call, reporting a naked child two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, so the statutory investigative mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; the determination of neglect required the application of the legal principles set forth in G.S. 7B-101(15), and was therefore a conclusion of law. In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).
While the findings of fact and conclusions of law showed, by clear and convincing evidence pursuant to G.S. 7B-805, that a father neglected his three-month-old infant under G.S. 7B-101(15), based on an incident where the infant suffered a severe head injury while in his father's sole care, which could not have been attributed to rolling off the couch as the father contended happened when he went to get a bottle for the infant, the proof was insufficient to show that the mother had neglected the infant; she was not at home when the incident occurred and there were no other incidents involving the infant. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).
Trial court erred in finding that the mother neglected the child, because: (1) the trial court's finding of fact that the mother had failed to appropriately care for the child was not supported by clear and convincing evidence; (2) the trial court's findings of fact indicated that the mother was not at the home when the child suffered his injuries; (3) the child was developing appropriately and had never missed any doctor's appointments; (4) there were no allegations, evidence, or findings of fact related to any of the other bases for a finding of neglect as defined in G.S. 7B-101(15); and (5) there was no evidence presented indicating that the mother knew or reasonably should have known that the father would harm the child. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).
Because a finding of neglect against the father of three children under G.S. 7B-101(15) was based on the trial court's conclusion of abuse as to another child living in the same residence and that finding of abuse had been reversed, the finding was insufficient to establish a basis for neglect. In re C.B., 180 N.C. App. 221, 636 S.E.2d 336 (2006), aff'd, 361 N.C. 345, - S.E.2d - (2007).
County department of social services did not satisfy its burden of proving the allegations in its juvenile petitions by clear, cogent, and convincing evidence under G.S. 7B-1109 because the subject children were not neglected juveniles under G.S. 7B-101(15), nor dependant juveniles under G.S. 7B-101(9); the trial court in its ruling properly entered uncontested findings of fact that: (1) the father possessed a gun, but did not point it at the mother or the children during a domestic disturbance; (2) the parents' three oldest children left their residence with the father, but no kidnapping was reported, and an Amber Alert was not issued; (3) the district attorney's office dismissed the charges against the father for communicating threats to and assault by pointing a gun at the mother; and (4) the father was not in possession of a gun when he was arrested. In re H.M., 182 N.C. App. 308, 641 S.E.2d 715 (2007).
Department of social services failed to present evidence that the children were neglected, as defined in G.S. 7B-101(9), and dependent, as defined in G.S. 7B-101(15); although the record showed that the parents abused alcohol, the record contained no evidence that the children suffered any harm or were in anyway neglected as a result. In re E.P, 183 N.C. App. 301, 645 S.E.2d 772 (2007).
Trial court erred in order termination of the father's parental rights based on neglect, because the trial court failed to consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. Since the time the petition to terminate the father's rights was filed, the father was released from incarceration, had obtained full-time employment, had family medical insurance available through the father's employer, and had a furnished apartment which was near the father's work and schools for the children. In re G.B.R., 220 N.C. App. 309, 725 S.E.2d 387 (2012).
Findings of fact did not support a trial court's conclusion that the parents' child and nieces were neglected because, even if it were assumed that a parent abused the step-daughter of the parent's cousin in the parents' home where the child and nieces lived, this fact alone did not support a conclusion that the children were neglected. The trial court also failed to make any findings of fact regarding other factors that would have supported a conclusion that the abuse would have been repeated. In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014).
Trial court's findings of fact did not find clear, cogent, and convincing evidence and were insufficient to support its conclusion of law that the father's parental rights could be terminated on the ground that he was incarcerated because it failed to
make any adjudicatory findings concerning the father's alleged failings; the trial court found no other grounds existed upon which to base termination of the father's parental rights. In re J.D.A.D.,
253 N.C. App. 53, 801 S.E.2d 653 (2017).
Evidence Insufficient to Show Neglect Under Former G.S. 7A-517. - The trial court correctly held that there was insufficient evidence to support a finding that the siblings of a child who died under mysterious circumstances were abused or neglected. Norris
v. Zambito, 135 N.C. App. 288, 520 S.E.2d 113 (1999).
Spanking by Father Did Not Rise to Level of Serious Injury for Abuse. - Finding of child abuse under G.S. 7B-101(1) was improper because the only evidence of
record was a spanking by the father with a belt, resulting in a bruise on the child's buttocks, which did not rise to the level of "serious injury" to constitute abuse by clear and convincing evidence, as required by G.S. 7B-805.
In re C.B., 180 N.C. App. 221, 636 S.E.2d 336 (2006), aff'd, 361 N.C. 345, - S.E.2d - (2007).
Emotional Damage. - Trial court did not err in its adjudicating a mother's daughter abused or in its disposition. In light of false allegations of abuse which the trial court found the mother made against the father, the appellate court could not conclude that the trial court erred in providing clarity in its order when it identified the mother as the parent who created or allowed to be created serious emotional damage. In re K.W., - N.C. App. - , 846 S.E.2d 584 (2020).
Evidence Held Sufficient to Show Abuse. - The evidence before the trial court was sufficient to support its findings of abuse and neglect where: (1) Child, while in respondent's sole care, suffered multiple burns over a wide portion of her body; (2) no accidental cause was established, and the child in fact stated that respondent burned her; (3) the burns were serious, requiring prompt medical attention; (4) respondent did not seek treatment for the child's injuries and refused to permit social worker to do so; and (5) the child was taken for treatment only upon the intervention of the sheriff's department, over respondent's opposition. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).
Children were held to be abused juveniles, where the court found that the children had suffered serious emotional damage as the result of their parents' acrimonious marital dispute as the older daughter exhibited symptoms of depression and had entertained suicidal thoughts, and the younger daughter testified about the severe anxiety her parents' actions caused her. Powers v. Powers, 130 N.C. App. 37, 502 S.E.2d 398 (1998).
The trial court's findings of fact regarding child's status as an abused juvenile were supported by clear and convincing evidence where the child testified that her father had shown her a picture of a woman wearing a see-through dress, the child's friend drew a picture in court of what she had seen, i.e. the father's anatomy, a social worker testified that the child had told her that her father had "asked her to touch his penis," and a doctor testified that the child had told her that her father had asked her to look at a "dirty book." In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).
Father's children were found abused by his wife under G.S. 7B-101(1)(a), (b) based upon G.S. 7B-101(15) clear and convincing evidence that wife regularly abused the children, inter alia, by choking, hitting with her hands and a cookie jar, pulling out their hair, and fighting with them, and by drinking alcohol and using crack cocaine in front of the children; furthermore evidence showed that the father did not protect the children from such behavior. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).
Parental rights were properly terminated under G.S. 7B-1111 because the trial court found that the children were abused under G.S. 7B-101(1) and that they exhibited symptoms of that abuse; further, the Department of Social Services met its burden of proving that termination was in the best interests of the children under G.S. 7B-1110(a). In re L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007), review denied, 361 N.C. 354, 646 S.E.2d 114 (2007).
Evidence that the mother (1) knew of the father's violent and abusive nature and alcohol abuse, (2) failed to take the steps necessary to protect the minor children, (3) witnessed many of the incidents where the father would consume alcohol to excess and act out upon the children, and (4) allowed the father to drive the children after the father had consumed a large quantity of alcohol sufficiently supported a determination that the mother allowed to be created a substantial risk of serious physical injury to the children other than by accidental means, and thus, supported a finding of abuse as to the mother. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).
In terminating parental rights, the trial court only needed to find one basis for termination pursuant to G.S. 7B-1111, and the trial court based its termination on detailed findings and conclusions as to ongoing, severe and repeated abuse of the child, who suffered injuries that were not accidental (including fractures), who had failed to thrive, and who was an abused juvenile as defined by G.S. 7B-101(a); thus, respondent mother's argument that the termination was based solely on felonious child abuse charges lacked merit. In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008).
Clear and convincing evidence supported a trial court's finding that a minor child was an abused juvenile pursuant to G.S. 7B-101(1)(d) as she was being raped by her father because the trial court properly evaluated a physician's testimony that the child's physical condition was consistent with child sexual abuse; the child's testimony that her father raped her repeatedly over the course of a year was corroborated by the physician, who found that her vaginal trauma was consistent with forced penetration, and the child's testimony, along with the physician's findings, were sufficient for the trial judge to find that the child was abused pursuant to G.S. 7B-101(1)(d). In re K.W., 192 N.C. App. 646, 666 S.E.2d 490 (2008).
Clear and convincing evidence showed that a child was abused because medical and other evidence that (1) the child's injuries were non-accidental, (2) the trauma occurred shortly before the child's hospital admission, and (3) the child's injuries were life-threatening supported legal conclusions that the child was abused in that a person responsible for the child's care allowed a serious physical injury to be inflicted on the child by non-accidental means and created or allowed to be created a substantial risk of serious physical injury to the child by non-accidental means. In re C.M., 198 N.C. App. 53, 678 S.E.2d 794 (2009).
Trial court did not err in adjudicating a mother's child as abused under G.S. 7B-101(1)(a) and (b) because the mother, while holding the one-month-old child in her arms, initiated a physical altercation with her boyfriend that led to her falling to the floor while being punched repeatedly; although the child was not injured, the mother suffered multiple knots and bruises, and the mother's decision to enter into a physical altercation while holding the child created a substantial risk of serious physical injury to her, particularly considering her extremely young age and overall helplessness. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).
Trial court's findings supported its determination that a child was a neglected juvenile under G.S. 7B-101(15) because the mother, while holding the one-month-old child in her arms, initiated a physical altercation with her boyfriend that led to her falling to the floor while being punched repeatedly, and the mother failed to report the incident to law enforcement when they were called to the scene to investigate; the mother was being treated for bipolar disorder, and she did not believe her treatment was working. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).
District court did not err when it adjudicated the eight-year-old child as an abused juvenile because the mother struck the child five times with a belt, leaving multiple bruises on the inside and outside of his legs which were still visible the following afternoon; and the child described the discipline as a beating. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).
Child and the child's brother were properly adjudicated to be abused, under G.S. 7B-101(1)(d), because the evidence showed the child's mother and stepfather allowed the brother to commit G.S. 14-27.3 second-degree statutory rape and G.S. 14-27.5 second-degree statutory sexual offense against the child, despite being made aware of the conduct. In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).
Substantial evidence supported the findings that the mother informed several co-workers that her son was possessed by demons and had performed a demonic dance move, suffered from paranoia, told her son that he was possessed, and, along with a boyfriend, had tied the son to a tree with duct tape. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).
Sufficient evidence supported the conclusion that a second child in the house was neglected given the trial court's findings that the abused child was forced to sleep outside, bound to a tree, required to participate in a self-baptism, ordered to pray while the boyfriend brandished a firearm, struck with a belt all over his body, and repeatedly told that he was possessed by demons, and thus, the second child lived in an injurious environment and faced a substantial risk of physical, mental, or emotional impairment. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).
Trial court did not err in finding that a stepmother was a responsible individual and in placing her name on the Responsible Individuals List because the child's testimony tended to establish that when the stepmother struck him in the head it was intentional, by other than accidental means; the stepmother was a responsible individual because she was a parent, guardian, custodian, or caretaker, and she abused the child. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Infant child sustained a torn lingual frenulum and multiple bone fractures, which were serious injuries inflicted by other than accidental means, which supported the conclusion that the child was abused; the finding that the parents were responsible was
appropriate, as they were the sole caretakers. In re R.S., 254 N.C. App. 678, 802 S.E.2d 169 (2017).
Evidence before the trial court was sufficient to support its findings of abuse and neglect where three physicians, two of whom were experts in the area of child abuse, testified that the juvenile was the victim of Munchausen syndrome by proxy, a form of child abuse with a substantial risk of morbidity and even mortality, possibly induced by the mother either smothering the juvenile or administering a toxin. In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003).
Abuse and neglect determination was supported by evidence that the child's skull fracture was a depression fracture caused by non-accidental means, the mother's explanations were inconsistent with the injuries observed, the injuries occurred while the
child was in the physical custody of the mother, the injuries were severe, and the mother failed to obtain medical attention for the child. In re T.H.T., 185 N.C. App. 337, 648
S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008).
Evidence Insufficient to Show Both Abuse and Neglect. - Trial court's detailed findings of fact, including that the doctors noted in medical records that the infant was a healthy, well-cared-for, three-month-old baby and that respondents were at all times forthcoming and cooperative in the investigation and did not delay in seeking medical attention, did not support the conclusion that respondents abused or allowed abuse of the child. Not only did the Department of Social Services fail to check the box for neglect on the form petition, but the allegations did not clearly allege the separate claim of neglect. In re K.L., - N.C. App. - , 845 S.E.2d 182 (2020).
Evidence Insufficient to Show Both Neglect And Dependence. - Trial court erred in adjudicating a mother's child neglected and dependent because the evidence and supported findings demonstrated the mother suffered from mental health issues, but was attending
some treatment, while her older children were removed from her care, the findings were insufficiently detailed to determine the grounds for their removal, and the mother placed the child with a couple with the assistance of the
owners of the laundromat where the mother resided, she did not merely acquiesced in the plan created for the child by the Department of Social Services, Youth, and Family Services. In re B.P., 257 N.C. App. 424, 809 S.E.2d 914 (2018).
Evidence Held Sufficient to Place Parent on Responsible Individuals List. - Trial court's findings that the child was forced to sleep outside, bound to a tree, required to participate in a self-baptism, ordered to pray while the boyfriend brandished a
firearm, struck with a belt all over his body, and repeatedly told that he was possessed by demons justified the mother's placement on the responsible individuals list. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).
Parental Rights Properly Terminated. - The following findings supported the court's conclusion that a mother's parental rights should be terminated for neglect: (1) The child was in the bottom 5% of children in her age group in weight; (2) the mother failed to supervise her properly; (3) the child was allowed to remain in dirty diapers and to drink out of discarded bottles; (4) the child lived in an environment injurious to her health and welfare; and (5) the mother suffered mental problems resulting in inability to care for herself and her child. In re Caldwell, 75 N.C. App. 299, 330 S.E.2d 513 (1985).
Even if there is no evidence of neglect at the time of the termination proceeding, parental rights may still be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parent or parents. In re Reyes, 136 N.C. App. 812, 526 S.E.2d 499 (2000).
Termination of parental rights under G.S. 7B-1111(a)(1), based on a finding that parents' children were neglected pursuant to G.S. 7B-101(15), was supported by evidence that the parents' relationship involved aggression and violence, that neither had learned to control their aggressive tendencies, that their conduct was harmful to the children, and that termination of parental rights was in the children's best interests. In the Matter of T.J.C., 225 N.C. App. 556, 738 S.E.2d 759 (2013), review denied, 743 S.E.2d 194, 2013 N.C. LEXIS 538 (2013), review denied, 2013 N.C. LEXIS 631 (2013).
Trial court did not err by terminating a mother's parental rights to three children on grounds of neglect because there was evidence of prior neglect, the neglect was ongoing, a substantial probability existed the children would be neglected or abused in the future, and the mother continued to associate with individuals who abused her or the children. In re D.A.H.-C., 227 N.C. App. 489, 742 S.E.2d 836 (2013).
District court's findings supported the conclusion that the father's parental rights were subject to termination as the child would likely be neglected again if the child were returned to the father's care because the mother struggled with basic parenting
skills and relied on the father as a main support for parenting; the father was willing to leave the child alone in the care of the mother even though the mother was unfit for such accountability; the parents continued to be in
constant marital discord even while having supervised visits with the child; and the parents intended to remain together despite the aforementioned problems. In re Z.V.A., 373 N.C. 207,
835 S.E.2d 425 (2019).
The trial court's decision adjudicating a mother's son as a neglected and dependant juvenile was not supported by clear, cogent, and convincing evidence because the trial court's order (1) did not distinguish between findings of fact and conclusions of
law, (2) did not reference any of the several statutory grounds for determining neglect, and (3) was based on an order adjudicating the son's siblings neglected in another case, which had been remanded for adequate findings of
fact and conclusions of law. In re T.M.M., 167 N.C. App. 801, 606 S.E.2d 416 (2005).
Trial court's ordering of neglected juvenile into the custody of the Department of Social Services was not error, even though it was unable, at the time, to provide adequate living and educational facilities for the juvenile. In re Kennedy,
103 N.C. App. 632, 406 S.E.2d 307 (1991).
Absence of parent. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by
clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000).
District court had no right to assume custody jurisdiction of minor children upon its finding that they were "neglected" children to the exclusion of the district court which had previously acquired custody jurisdiction in a divorce and custody proceeding
of the children's parents. In re Greer, 26 N.C. App. 106, 215 S.E.2d 404, cert. denied, 287 N.C. 664, 216 S.E.2d 910 (1975).
Parents have the duty to take every step reasonably possible under the circumstances to prevent harm to their children. Failure to perform this duty is negligence. Coleman v. Cooper, 89 N.C. App. 188,
366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).
Department's Failure to Investigate All Potential Causes of Injuries. - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Department's Failure to Investigate All Potential Causes of Injuries. - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Investigator Had No Duty to Report Abuse by Teacher. - Negligent infliction of emotional distress claim filed against a law enforcement investigator who failed to report to the department of social services that a middle school teacher was engaging in
inappropriate contact with students was barred by the public duty doctrine because the investigator did not have a duty under G.S. 7B-101 and G.S. 7B-301 to report abuse by a teacher and the special relationship exception did not apply given that the investigator was not present in the middle school
on a day-to-day basis and did not have a direct relationship with students. Collum v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 598 (W.D.N.C. 2008).
Permanent Nature of Disfigurement. - By using the word "disfigurement" instead of words of transient import such as bruise, abrasion, contusion, discoloration, marks, or stripes in context with other words clearly indicating permanency ("death," "impairment
of physical health," "loss or impairment of function of any bodily organ") the General Assembly obviously intended to limit the application of subdivision (1)a of this section to injuries permanent in their effect. In re Mickle,
84 N.C. App. 559, 353 S.E.2d 232 (1987).
A temporary bruising is not a "disfigurement" under subdivision (1)a of this section. In re Mickle, 84 N.C. App. 559, 353 S.E.2d 232 (1987).
Procedure upon Finding Juvenile in Contempt. - The trial court was not authorized to summarily commit a child under 16 to state custody upon finding her in contempt of an order entered for engaging in undisciplined and non-criminal behavior, but was required
to follow specific statutory provisions applicable to children of that age. Taylor v. Robinson, 131 N.C. App. 337, 508 S.E.2d 289 (1998).
Department of Social Service's reunification efforts were reasonable under G.S. 7B-101 to prevent a father's kids' removal from his home where the department
completed two family services case plans with custodial father outlining what needed to be accomplished, provided supervised visits between him and his kids, and provided family counseling to the parties involved in addition to
other services provided by the department. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).
"Reasonable Effort" - "Reasonable effort" has been defined to mean the diligent and timely implementation of a plan of action; in the context of G.S. 15A-1344(f) that would mean those actions a reasonable person would pursue in seeking to notify defendant of his probation violation and conduct a hearing on the matter. State v. Burns, 171 N.C. App. 759, 615 S.E.2d
347 (2005).
Reasonable Efforts Used Toward Reunification. - There was ample evidence showing that the Department of Social Services used reasonable efforts towards reunification, and thus the mother's argument that the trial court did not have the evidence it needed
to find her behavior was willful or that her progress was not reasonable for termination purposes was unavailing; there was clear evidence to support findings that the mother willfully left the children in foster care for more
than 12 months and failed to make reasonable progress. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875 (2018).
Evidence Insufficient to Show Reasonable Efforts at Reunification. - Trial court's findings that the department made reasonable efforts to reunify under G.S. 7B-101(18),
and that one child was not likely to return home in six months, were not supported by competent evidence; the department gave the mother limited assistance in obtaining housing, which help proved useless, yet she had located three
potential homes and was optimistic she could rent one of them. In re S.D., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Evidence Insufficient to Show Reasonable Efforts at Reunification. - Trial court's findings that the department made reasonable efforts to reunify under G.S. 7B-101(18),
and that one child was not likely to return home in six months, were not supported by competent evidence; the department gave the mother limited assistance in obtaining housing, which help proved useless, yet she had located three
potential homes and was optimistic she could rent one of them. In re S.D., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Evidence Necessary. - Conclusion that a parent acted inconsistently with their constitutionally protected rights is not necessary to terminate parental rights based on neglect. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).
Allegations of G.S. 7B-602 Parental Condition Triggers Required Appointment of Guardian Ad Litem. - Department of social services "alleged" that the mother's
dependency and mental illness were the cause of her child's problems so, even without allegations of specific facts, it was error under G.S. 7B-602 for the lower
court not to appoint a guardian ad litem for her before it adjudicated whether her child was dependent and neglected under G.S. 7B-101(9), (15). In re C.B.,
171 N.C. App. 341, 614 S.E.2d 579 (2005).
Dependency Finding Reversed. - Decision that a child was dependent under G.S. 7B-101(9) was reversed because a trial court failed to conduct the two-part analysis; the court did not consider the availability of alternative child care arrangements where the evidence showed that a relative was willing to take the child in question. In re P.M., 169 N.C. App. 423, 610 S.E.2d 403 (2005).
Fact that the father could have been criminally liable for statutory rape pursuant to G.S. 14-27.7A(a), standing alone, was insufficient to support a conclusion that the father was unable to provide appropriate care for the child and that therefore the child was a dependent child. In re J.L., 183 N.C. App. 126, 643 S.E.2d 604 (2007).
District court erred when it adjudicated both children dependent juveniles because the father was able to provide proper care for the children as the county department of social services had found his home a safe and suitable placement, and the children had adjusted well to the placement and their new school. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).
Trial court erred in adjudicating a child as dependent because the county department of social services failed to present any evidence on child care at the hearing, and the trial court made no finding of fact that the mother lacked an alternative child care arrangement. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).
Trial court erred in adjudicating a child as dependent and placing her in the custody of the a social service agency because, while the trial court acknowledged that the father's paternity had been established, it made no findings and the agency made
no allegations and presented no evidence that the father, although a minor, was unable to provide or arrange for the care and supervision of the child. In re V.B., 239 N.C. App. 340, 768 S.E.2d 867 (2015).
Change of Custody Improper. - Given that the department of social services was prohibited under G.S. 7B-903(a)(2)(c) from returning physical custody of
a child, to the parent from whom the child had been taken, without a hearing in which a court found that the child would receive proper care in a safe home, as defined in G.S. 7B-101(19),
a trial court erred in changing custody of a child from a father to the mother because the court was required to find, but did not find, that the child would receive from the mother the necessary proper care and supervision in
a safe home, particularly in light of prior evidence that domestic violence had occurred in the home. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).
Return of Child to Parents Did Not Make the Issue of Neglect Moot. - Although a father regained full custody of his child, since there were collateral legal consequences that could arise from a neglect adjudication, such as a determination of whether
another child was neglected, the appeal from the adjudication of neglect should not have been dismissed as moot. In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006).
Judicially Noticed Findings. - Notwithstanding the trial court's authority to take notice of the court's own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of the court's prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).
Adjudication Order Was A Nullity. - Adjudication order finding a child was abused and signed by the chief district court judge was a nullity because the parties did not and could not have stipulated to the final conclusion, and no other evidence beyond the parties' stipulation was presented at the adjudication hearing; the retired judge was required to make findings of fact, adjudicated and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Applied in In re Small, 138 N.C. App. 474, 530 S.E.2d 104 (2000); In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000); In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001); State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47 (2002); In re Johnston, 151 N.C. App. 728, 567 S.E.2d 219 (2002); In re Yocum, 158 N.C. App. 198, 580 S.E.2d 399 (2003); In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003); In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004); In re J.C.S., 164 N.C. App. 96, 595 S.E.2d 155 (2004); In re D.Q.W., 167 N.C. App. 38, 604 S.E.2d 675 (2004); In re A.P., 165 N.C. App. 841, 600 S.E.2d 9 (2004); In re B.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005); In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005); In re K.D., 178 N.C. App. 322, 631 S.E.2d 150 (2006); In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012); State v. Stevens, 228 N.C. App. 352, 745 S.E.2d 64 (2013), review denied 367 N.C. 256,
749 S.E.2d 886, 2013 N.C. LEXIS 1285 (2013); State v. Harris, 236 N.C. App. 388, 763 S.E.2d 302 (2014); In re L.R.S., 237 N.C. App. 16, 764 S.E.2d 908 (2014); In re O.J.R.,
239 N.C. App. 329, 769 S.E.2d 631 (2015); In re A.B. J.B., 245 N.C. App. 35, 781 S.E.2d 685 (2016), review denied, 793 S.E.2d 695, 2016 N.C. LEXIS 990 (2016).
Cited in In re Pegram, 137 N.C. App. 382, 527 S.E.2d 737 (2000); Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000); In re Dula, 143 N.C. App. 16, 544 S.E.2d 591 (2001), aff'd, 354 N.C. 356, 554 S.E.2d 336 (2001); In re Pope, 144 N.C. App. 32, 547 S.E.2d 153 (2001); State v. Branham, 153 N.C. App. 91, 569 S.E.2d 24 (2002); In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65 (2002); In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003); In re Estes, 157 N.C. App. 513, 579 S.E.2d 496 (2003), cert. denied, 357 N.C. 459, 585 S.E.2d 390 (2003); In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003), appeal dismissed, 357 N.C. 506,
588 S.E.2d 472 (2003); In re Everett, 161 N.C. App. 475, 588 S.E.2d 579 (2003); In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004); In re V.L.B., 164 N.C. App. 743, 596 S.E.2d 896 (2004); In re J.L.K., 165 N.C. App. 311, 598 S.E.2d 387 (2004), cert. denied, 359 N.C. 68, 604 S.E.2d 314 (2004); In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 779 (2006); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006); In re J.G.B., 177 N.C. App. 375, 628 S.E.2d 450 (2006); In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006); In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006); In re A.S., 182 N.C. App. 139, 641 S.E.2d 400 (2007); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re T.M., 182 N.C. App. 566, 643
S.E.2d 471 (2007); In re A.H., 183 N.C. App. 609, 644 S.E.2d 635 (2007); State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007); In re A.M., 192 N.C. App. 538, 665 S.E.2d 534 (2008); In re S.C.H., 199 N.C. App. 658, 682 S.E.2d 469 (2009), aff'd, 363 N.C. 828, 689 S.E.2d 858, 2010 N.C. LEXIS 196 (2010); In re N.B., 200 N.C. App. 773, 688 S.E.2d 713 (2009); In re N.E.L., 202 N.C. App. 576, 688 S.E.2d 803 (2010); In re J.H.K., 205 N.C. App. 165, 695 S.E.2d 162 (2010); In re Y.Y.E.T., 205 N.C. App. 120, 695 S.E.2d 517 (2010); In re L.H., 210 N.C. App. 355, 708 S.E.2d 191 (2011); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); In re D.M., 211 N.C. App. 382, 712 S.E.2d 355 (2011); Jenkins v. Hearn Vascular Surgery, P.A., 217 N.C. App. 118, 719 S.E.2d 151 (2011); In re K.O., 223 N.C. App. 420, 735 S.E.2d 369 (2012); In re
T.J.F., 230 N.C. App. 531, 750 S.E.2d 568 (2013); In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013); In re N.T.U., 234 N.C. App. 722, 760
S.E.2d 49 (2014); In re D.L.W., 241 N.C. App. 32, 773 S.E.2d 504 (2015); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015); In re T.R., 250 N.C. App. 386, 792 S.E.2d 197 (2016); In re M.A.W., 370 N.C. 149, 804 S.E.2d 513 (2017).
Opinions of Attorney General
Editor's Note. -
The opinion below was rendered under former Chapter 7A.
The definition of "sexual abuse" as set forth in the recent amendments to the Child Abuse Prevention and Treatment Act (42 U.S.C. § 5101 et seq., as amended by P.L. 95-266) was encompassed within the definition of "abused child" as set forth in former G.S. 110-117 and the definition of "neglected child" as set forth in former G.S. 7A-278(4). See opinion of Attorney General to Mr. Carl H. Harper, Regional Attorney, Region IV, United States Department of Health, Education and Welfare, 48 N.C.A.G. 1 (1978).
ARTICLE 2. Jurisdiction.
Sec.
§ 7B-200. Jurisdiction.
-
The court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent. This jurisdiction does not extend to cases involving adult defendants alleged to be guilty of abuse or neglect.
- Proceedings under the Interstate Compact on the Placement of Children set forth in Article 38 of this Chapter.
- Proceedings involving judicial consent for emergency surgical or medical treatment for a juvenile when the juvenile's parent, guardian, custodian, or other person who has assumed the status and obligation of a parent without being awarded legal custody of the juvenile by a court refuses to consent for treatment to be rendered.
- Proceedings to determine whether a juvenile should be emancipated.
- Proceedings to terminate parental rights.
- Proceedings for reinstatement of parental rights.
- Proceedings to review the placement of a juvenile in foster care pursuant to an agreement between the juvenile's parents or guardian and a county department of social services.
- Proceedings to review the placement of a young adult in foster care pursuant to G.S. 108A-48 and G.S. 7B-910.1.
- Proceedings in which a person is alleged to have obstructed or interfered with an investigation required by G.S. 7B-302.
- Proceedings involving consent for an abortion on an unemancipated minor under Article 1A, Part 2 of Chapter 90 of the General Statutes.
- Proceedings by an underage party seeking judicial authorization to marry under Article 1 of Chapter 51 of the General Statutes.
- Petitions for judicial review of a director's determination under Article 3A of this Chapter.
- The court shall have jurisdiction over the parent, guardian, custodian, or caretaker of a juvenile who has been adjudicated abused, neglected, or dependent, provided the parent, guardian, custodian, or caretaker has (i) been properly served with summons pursuant to G.S. 7B-406, (ii) waived service of process, or (iii) automatically become a party pursuant to G.S. 7B-401.1(c) or (d).
-
When the court obtains jurisdiction over a juvenile as the result of a petition alleging that the juvenile is abused, neglected, or dependent:
- Any other civil action in this State in which the custody of the juvenile is an issue is automatically stayed as to that issue, unless the juvenile proceeding and the civil custody action or claim are consolidated pursuant to subsection (d) of this section or the court in the juvenile proceeding enters an order dissolving the stay. When there is an automatic stay, the court shall ensure that a notice is filed in the stayed action if the county and case file number are made known to the court. The notice shall be on a printed form created by the North Carolina Administrative Office of the Courts, include notice of the stay, and provide the county and case file number for the action under this Article.
- If an order entered in the juvenile proceeding and an order entered in another civil custody action conflict, the order in the juvenile proceeding controls as long as the court continues to exercise jurisdiction in the juvenile proceeding.
- Notwithstanding G.S. 50-13.5(f), the court in a juvenile proceeding may order that any civil action or claim for custody filed in the district be consolidated with the juvenile proceeding. If a civil action or claim for custody of the juvenile is filed in another district, the court in the juvenile proceeding, for good cause and after consulting with the court in the other district, may: (i) order that the civil action or claim for custody be transferred to the county in which the juvenile proceeding is filed; or (ii) order a change of venue in the juvenile proceeding and transfer the juvenile proceeding to the county in which the civil action or claim is filed. The court in the juvenile proceeding may also proceed in the juvenile proceeding while the civil action or claim remains stayed or dissolve the stay of the civil action or claim and stay the juvenile proceeding pending a resolution of the civil action or claim.
The court also has exclusive original jurisdiction of the following proceedings:
History
(1979, c. 815, s. 1; 1983, c. 837, s. 1; 1985, c. 459, s. 2; 1987, c. 409, s. 2; 1995, c. 328, s. 3; c. 462, s. 2; 1996, 2nd Ex. Sess., c. 18, s. 23.2(c); 1998-202, s. 6; 1999-456, s. 60; 2001-62, s. 13; 2005-320, s. 1; 2005-399, s. 4; 2010-90, s. 3; 2011-295, s. 1; 2013-129, s. 2; 2017-161, s. 1; 2019-33, s. 2.)
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Session Laws 2013-129, s. 41, made the amendment to subsection (b) by Session Laws 2013-129, s. 2, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 3, effective July 11, 2010, rewrote subdivision (a)(9), which formerly read: "Petitions for expunction of an individual's name from the responsible individuals list under Article 3A of this Chapter."
Session Laws 2011-295, s. 1, effective October 1, 2011, and applicable to actions filed or pending on or after that date, added subdivision (a)(4a).
Session Laws 2013-129, s. 2, effective October 1, 2013, in subsection (b), substituted "parent, guardian, custodian, or caretaker" for "parent or guardian" twice and "G.S. 7B-406, (ii) waived service of process, or (iii) automatically become a party pursuant to G.S. 7B-401.1(c) or (d)" for "G.S. 7B-406," deleted "as provided by G.S. 7B-904" following "neglected, or dependent," and added "(i)" preceding "been properly served." For applicability, see editor's note.
Session Laws 2017-161, s. 1, effective October 1, 2017, added subdivision (a)(5a).
Session Laws 2019-33, s. 2, effective October 1, 2019, added the last two sentences to subdivision (c)(1).
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For article, "Juvenile Justice in Transition - A New Juvenile Code for North Carolina," see 16 Wake Forest L. Rev. 1 (1980).
For article on the efficacy of a probable cause requirement in juvenile proceedings, see 59 N.C.L. Rev. 723 (1981).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
For article, "Re-Imaging Childhood and Reconstructing the Legal Order: the Case for Abolishing the Juvenile Court," see 69 N.C.L. Rev. 1083 (1991).
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
This Article vests exclusive, original jurisdiction over any case involving a child in the district court judge and provides in detail for procedures in the district court in cases involving children. State v. Miller, 281 N.C. 70,
187 S.E.2d 729 (1972), decided under former G.S. 7A-278 and G.S. 7A-279.
Federal & State Interrelationships. - G.S. 7B-200(a) states that the court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent; the statute defines "court" as the district court division of the General Court of Justice - that is, state district court, not federal district court. G.S. 7B-101(6). Wood v. Mecklenburg County Dep't of Soc. Servs., - F. Supp. 2d - (W.D.N.C. Aug. 18, 2008).
Insufficient findings showed a trial court had jurisdiction under the Indian Child Welfare Act, 25 U.S.C.S.
§
1901 et seq., because judicial notice could not be taken of a proffered 25 U.S.C.S.
§
1919 memorandum of agreement (MOA) between a tribe and the state, since the MOA was not authenticated, and the MOA was a legislative fact of which judicial notice could not be taken. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).
Nature of Proceedings. - As the district court division has exclusive original jurisdiction of Juvenile Code matters, actions under the former Juvenile Code (formerly G.S. 7A-516 et seq.) are not special proceedings. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Petition of Continuing Jurisdiction. - Juvenile court, which acquired jurisdiction over children as of September 26, 1984, when service of summons was completed on parent, and on September 27, 1984, entered an order allowing Department of Social Services
(DSS) to retain temporary and legal custody of the children, retained continuing jurisdiction over the children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).
Jurisdiction over Juveniles. - Where defendant was twelve or thirteen at the time he committed the felony of crime against nature, but had subsequently become an adult, the district court had exclusive original jurisdiction, because for the purposes of determining subject matter jurisdiction over a juvenile, age at the time of the alleged offense governs. State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996).
Where juvenile was temporarily living with his uncle in North Carolina he was found to reside in North Carolina, thus permitting disposition of delinquency petitions in the district where the acts allegedly occurred, even though the juvenile's mother, who resided in the District of Columbia, had custody of him. In re Robinson, 132 N.C. App. 122, 510 S.E.2d 190 (1999).
Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the
stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect.
In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Jurisdiction over Neglect and Dependency Proceedings. - Juvenile court, which acquired jurisdiction over the subject matter when the summons was served upon mother, although it was not served upon father, as required by former G.S. 7A-565, had the authority to decide the issue of neglect and dependency of three children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).
Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).
Trial court lacked subject matter jurisdiction to enter orders finding the mother's four minor children to be abused an neglected after the county social services department of the neighboring county, due to a conflict the county social services department had, conducted an investigation and found that allegations of abuse and neglect by the mother's church and the caretaker of the children were unfounded; once an official finding that no abuse and neglect had occurred, the trial court lost the authority to declare that it had occurred and to determine that the four minor children should be removed from the custody of the caretaker. In re S.D.A., 170 N.C. App. 354, 612 S.E.2d 362 (2005).
District court, in adjudicating a child neglected, was not limited to considering only those circumstances occurring within its district. To hold otherwise would allow abusive and neglectful parents to avoid court intervention by simply moving from county to county. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court; because there was no evidence in the record suggesting later filings sufficient to invoke subject matter jurisdiction as to the lower court's subsequent order from a review hearing, the trial court erred in proceeding on the matter due to lack of subject matter jurisdiction. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).
Trial court had jurisdiction over a child's mother and father where both parents were properly served with the summons and the petition alleged that the child was neglected. In re M.B., 179 N.C. App. 572, 635 S.E.2d 8 (2006).
When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).
In a case in which a district terminated the parental rights of a mother and a father, the mother and the father unsuccessfully argued on appeal that the district court lacked subject matter jurisdiction to act upon a motion in the cause to reassume custody by appellee, a county Department of Social Services, because the district court terminated its jurisdiction over the juvenile when it ordered the case closed. Closing a case did not mean the same thing as terminating jurisdiction, and each was a separate action with distinct consequences; once jurisdiction of the court attached to a child custody matter, it existed for all time until the cause was fully and completely determined. In re S.T.P., 202 N.C. App. 468, 689 S.E.2d 223 (2010).
Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child's mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support to the child's mother; however, further findings were required under G.S. 7B-904(d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).
Trial court lacked jurisdiction to enter an order adjudicating a mother's son neglected and dependent and placing him in the custody of a department because there was no finding of fact, order, or other indication that the New York court involved in prior protective services had opted not to exercise jurisdiction; there was no finding or conclusion concerning status of the New York court's jurisdiction or finding that the North Carolina court met the requirements of G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) such that it could make a modification under G.S. 50A-203. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204 (2013).
County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director of social services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).
Child custody action was not pending when a neglect proceeding was initiated because as the juvenile court obtained jurisdiction over the children, the juvenile court had continuing exclusive jurisdiction unless jurisdiction was terminated by order of the court; at the time the father filed the civil custody action, the trial court had no jurisdiction over the child custody action because of the already-pending neglect proceeding. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).
Trial Court Had No Authority to Act Where No Request for Relief in Motion - Trial court lacked subject matter jurisdiction to enter an order on the county Department of Social Services' (DSS) "motion in the cause," which was made at the previous direction
of the trial court for DSS to petition for termination of a mother's parental rights, where the motion lacked any request for relief, as required by G.S. 1A-1,
Rule 7(b)(1); although the trial court had subject matter jurisdiction over termination proceedings and motions therein, pursuant to subdivision (a)(4) of this section and G.S. 7B-1101,
it was bound to follow the Rules of Civil Procedure in such an action, based on G.S. 1A-1, Rule 17(c)(2), and accordingly, the motion
was found to be insufficient. In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003).
Trial court had authority to assert jurisdiction over child who had relocated to North Carolina from Florida. - Under former G.S. 50A-3(a)(3)(ii), the emergency jurisdiction provision of the UCCJA, where child was present in Durham County at the time
the petition was filed alleging that she had been sexually abused; however, the trial court erred by failing to contact the Florida court that had previously exercised jurisdiction over the custody of the child to determine if
that court would exercise jurisdiction, prior to attempting to change custody. In re Malone, 129 N.C. App. 338, 498 S.E.2d 836 (1998).
The trial court had jurisdiction to enter a temporary nonsecure custody order. - Placing children who had been visiting noncustodial parent in North Carolina, but whose "home state" under the former UCCJA was Iowa, with DSS where there was a reasonable
factual basis to believe that one child had been sexually abused and hospitalized for depression and the other child had been physically abused and was hospitalized for stress disorder, pending application to home state determine
if Iowa was willing to exercise jurisdiction. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160 (1997), appeal dismissed, 347 N.C. 576, 502 S.E.2d
618 (1998).
Jurisdiction to Issue Nonsecure Custody Order. - County department of social services (DSS) had no right to appeal the trial court's denial of the court's motion to review the foster care board rate provisions of a nonsecure custody order under
G.S. 7B-1001(a)(1), which permitted appeal from any order finding absence of jurisdiction, as the trial court never ruled that the court lacked jurisdiction
to decide DSS's motion. Under G.S. 7B-506(d), 7B-200(a), the trial court clearly had jurisdiction to enter a nonsecure custody order; and, assuming arguendo
that the court erred in the scope of the court's order for board payments to foster parents, this did not necessarily deprive the court of jurisdiction. In re A.T., 191 N.C. App. 372, 662 S.E.2d 917
(2008).
Trial Court Lacked Jurisdiction in Termination of Parental Rights Action Where Juvenile Petition Not Properly Filed. - In a termination of parental rights action, the trial court lacked jurisdiction to conduct the permanency planning and review hearings
because the Department of Social Services failed to file a proper juvenile petition consistent with the requirements of G.S. 7B-402(a) and G.S. 7B-403(a), and thus no juvenile abuse, neglect, or dependency action was ever commenced. In re E.B., - N.C. - , - S.E.2d - (Sept. 25, 2020).
Affidavit Not Required. - Where the court obtained jurisdiction over a juvenile matter pursuant to former G.S. 7A-523, and not Chapter 50A, the Uniform Child Custody Jurisdiction Act, the affidavit referred to in former G.S. 50A-9 was not a prerequisite to its jurisdiction. In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23 (1985).
Even where the juvenile petition filed by the county social services department failed to attach an affidavit as to the status of the minor child, the trial court did not lack subject matter jurisdiction over the minor child's neglect and dependency proceeding;
although the better practice was to attach the affidavit, the failure to file the affidavit did not by itself divest the trial court of subject matter jurisdiction. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).
Power to Order Sex Offender Treatment. - The district court had power to order the Department of Human Resources, Division of Youth Services to give sex offender treatment to an adolescent found delinquent because of sex offenses and subsequently to deny the conditional release of that adolescent because treatment had not been in compliance with that mandate. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).
Ordering Division of Youth Services to provide specific treatment for sexual offenders for a delinquent juvenile in its custody, when such treatment was available, was within the scope of the court's statutory authority. In re Doe,
329 N.C. 743, 407 S.E.2d 798 (1991).
Procedure upon Finding Juvenile in Contempt. - The trial court was not authorized to summarily commit a child under 16 to state custody upon finding her in contempt of an order entered for engaging in undisciplined and non-criminal behavior, but was required
to follow specific statutory provisions applicable to children of that age. Taylor v. Robinson, 131 N.C. App. 337, 508 S.E.2d 289 (1998).
Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011); Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486 (2013).
Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850 (2008); In re K.J.L., 363 N.C. 343,
677 S.E.2d 835 (June 18, 2009); In re N.E.L., 202 N.C. App. 576, 688 S.E.2d 803 (2010); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); In re E.H.,
227 N.C. App. 525, 742 S.E.2d 844 (2013); In re Baby Boy, 238 N.C. App. 316, 767 S.E.2d 628 (2014); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d
123 (2015); In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015); In re J.S., 250 N.C. App. 370, 792 S.E.2d 861 (2016); In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).
§ 7B-201. Retention and termination of jurisdiction.
- When the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first.
-
When the court's jurisdiction terminates, whether automatically or by court order, the court thereafter shall not modify or enforce any order previously entered in the case, including any juvenile court order relating to the custody, placement, or guardianship
of the juvenile. The legal status of the juvenile and the custodial rights of the parties shall revert to the status they were before the juvenile petition was filed, unless applicable law or a valid court order in another civil
action provides otherwise. Termination of the court's jurisdiction in an abuse, neglect, or dependency proceeding, however, shall not affect any of the following:
- A civil custody order entered pursuant to G.S. 7B-911.
- An order terminating parental rights.
- A pending action to terminate parental rights, unless the court orders otherwise.
- Any proceeding in which the juvenile is alleged to be or has been adjudicated undisciplined or delinquent.
- The court's jurisdiction in relation to any new abuse, neglect, or dependency petition that is filed.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 4; 1996, 2nd Ex. Sess., c. 18, s. 23.2(d); 1998-202, s. 6; 1999-456, s. 60; 2005-320, s. 2.)
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Periodic Judicial Review. - Contrary to the mother's assertion, when custody of five children was placed with the father and jurisdiction was terminated by the trial court's dispositional order, the trial court had no further duty or authority to conduct
placement reviews. In re Dexter, 147 N.C. App. 110, 553 S.E.2d 922 (2001).
Jurisdiction over Neglect and Dependency Proceedings. - Juvenile court, which acquired jurisdiction over the subject matter when the summons was served upon mother, although it was not served upon father, as required by former G.S. 7A-565, had the authority to decide the issue of neglect and dependency of three children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).
Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court; because there was no evidence in the record suggesting later filings sufficient to invoke subject matter jurisdiction as to the lower court's subsequent order from a review hearing, the trial court erred in proceeding on the matter due to lack of subject matter jurisdiction. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).
When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).
Child custody action was not pending when a neglect proceeding was initiated because as the juvenile court obtained jurisdiction over the children, the juvenile court had continuing exclusive jurisdiction unless jurisdiction was terminated by order of the court; at the time the father filed the civil custody action, the trial court had no jurisdiction over the child custody action because of the already-pending neglect proceeding. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).
Retention of Continuing Jurisdiction. - Juvenile court, which acquired jurisdiction over children as of September 26, 1984, when service of summons was completed on parent, and on September 27, 1984, entered an order allowing Department of Social Services (DSS) to retain temporary and legal custody of the children, retained continuing jurisdiction over the children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).
In a case in which a district terminated the parental rights of a mother and a father, the mother and the father unsuccessfully argued on appeal that the district court lacked subject matter jurisdiction to act upon a motion in the cause to reassume custody
by appellee, a county Department of Social Services, because the district court terminated its jurisdiction over the juvenile when it ordered the case closed. Closing a case did not mean the same thing as terminating jurisdiction,
and each was a separate action with distinct consequences; once jurisdiction of the court attached to a child custody matter, it existed for all time until the cause was fully and completely determined. In re S.T.P.,
202 N.C. App. 468, 689 S.E.2d 223 (2010).
Jurisdiction Terminated. - Trial court did not err in asserting jurisdiction over a child custody action after a juvenile proceeding was terminated because the court had subject-matter jurisdiction to consider the father's custody claim once he invoked jurisdiction by filing a motion; the juvenile order terminated the jurisdiction of the juvenile court over the child and, thus, the legal status of the juvenile and the custodial rights of the parties reverted to the status they were before the juvenile petition was filed. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).
Effect of Voluntary Dismissal of First Termination Petition. - Fact that county department of social services had dismissed a prior petition for termination of a mother's parental rights did not preclude a subsequent petition since the best interests
of the children was always the primary focus, with no procedural rule barring the court's continuing jurisdiction over such a matter. In re L.O.K., 174 N.C. App. 426, 621 S.E.2d
236 (2005).
Jurisdiction Until 18 or Emancipated. - Although a trial court in a custody dispute ended the custody of a county department of social services, the court did not err in retaining jurisdiction to conduct period review hearings, despite a father's claim that the court, under G.S. 7B-906(d) (repealed, see now G.S. 7B-906.1), the court was relieved of the duty to conduct such reviews after custody was awarded to the father; in deciding a custody case under G.S. 7A-657, the almost-identical predecessor to G.S. 7B-906 (repealed, see now G.S. 7B-906.1), the state's supreme court had already ruled that the relevant statutory language meant only that a trial court had a right to terminate its jurisdiction, but a trial court was not required to do so. Further, in the context of the Juvenile Code, North Carolina, G.S. 7B-201 provided that once a court obtained jurisdiction over a juvenile, that jurisdiction continued until terminated by a court order or until the juvenile reached the age of 18 years or was otherwise emancipated, and the parties' child was not yet 18 or emancipated. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).
Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Father's appeal was moot because the trial court's order changing the permanent plan for his child was rendered moot when she reached the age of majority, which deprived the trial court of any further jurisdiction over the matter, the father conceded that the legal effect of the order did not have any collateral consequences, the case did not present anything so exceptionally important to the public interest that it should be treated as different from all other juvenile cases, the capable-of-repetition exception did not apply to legal errors in fact findings and legal conclusions that were particular to the case. In re A.K.G., - N.C. App. - , 841 S.E.2d 317 (2020).
Jurisdiction for Modifying Custody. - Trial court did not err in granting a mother legal and primary physical custody because the court was permitted to make an initial child custody determination since the juvenile court in the neglect proceeding returned custody to the parties; in the absence of an existing permanent child custody order, the trial court was not required to find or conclude that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).
Applied in In re H.L.A.D., 184 N.C. App. 381, 646 S.E.2d 425 (2007), aff'd, 362 N.C. 170, 655 S.E.2d 712 (2008); Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
Cited in In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 779 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d
787 (2006); In re J.M.D., 210 N.C. App. 420, 708 S.E.2d 167 (2011); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011).
§ 7B-202. Permanency mediation.
- The Administrative Office of the Courts shall establish a Permanency Mediation Program to provide statewide and uniform services to resolve issues in cases under this Subchapter in which a juvenile is alleged or has been adjudicated to be abused, neglected, or dependent, or in which a petition or motion to terminate a parent's rights has been filed. Participants in the mediation shall include the parties and their attorneys, including the guardian ad litem and attorney advocate for the child; provided, the court may allow mediation to proceed without the participation of a parent whose identity is unknown, a party who was served and has not made an appearance, or a parent, guardian, or custodian who has not been served despite a diligent attempt to serve the person. Upon a finding of good cause, the court may allow mediation to proceed without the participation of a parent who is unable to participate due to incarceration, illness, or some other cause. Others may participate by agreement of the parties, their attorneys, and the mediator, or by order of the court.
- The Administrative Office of the Courts shall establish in phases a statewide Permanency Mediation Program consisting of local district programs to be established in all judicial districts of the State. The Director of the Administrative Office of the Courts is authorized to approve contractual agreements for such services as executed by order of the Chief District Court Judge of a district court district, such contracts to be exempt from competitive bidding procedures under Chapter 143 of the General Statutes. The Administrative Office of the Courts shall promulgate policies and regulations necessary and appropriate for the administration of the program. Any funds appropriated by the General Assembly for the establishment and maintenance of permanency mediation programs under this Article shall be administered by the Administrative Office of the Courts.
- Mediation proceedings shall be held in private and shall be confidential. Except as provided otherwise in this section, all verbal or written communications from participants in the mediation to the mediator or between or among the participants in the presence of the mediator are absolutely privileged and inadmissible in court.
- Neither the mediator nor any party or other person involved in mediation sessions under this section shall be competent to testify to communications made during or in furtherance of such mediation sessions; provided, there is no confidentiality or privilege as to communications made in furtherance of a crime or fraud. Nothing in this subsection shall be construed as permitting an individual to obtain immunity from prosecution for criminal conduct or as excusing an individual from the reporting requirements of Article 3 of Chapter 7B of the General Statutes or G.S. 108A-102.
- Any agreement reached by the parties as a result of the mediation, whether referred to as a "placement agreement," "case plan," or some similar name, shall be reduced to writing, signed by each party, and submitted to the court as soon as practicable. Unless the court finds good reason not to, the court shall incorporate the agreement in a court order, and the agreement shall become enforceable as a court order. If some or all of the issues referred to mediation are not resolved by mediation, the mediator shall report that fact to the court.
History
(2006-187, s. 4(a).)
§§ 7B-203 through 7B-299: Reserved for future codification purposes.
ARTICLE 3. Screening of Abuse and Neglect Complaints.
Sec.
§ 7B-300. Protective services.
The director of the department of social services in each county of the State shall establish protective services for juveniles alleged to be abused, neglected, or dependent.
Protective services shall include the screening of reports, the performance of an assessment using either a family assessment response or an investigative assessment response, casework, or other counseling services to parents, guardians, or other caretakers as provided by the director to help the parents, guardians, or other caretakers and the court to prevent abuse or neglect, to improve the quality of child care, to be more adequate parents, guardians, or caretakers, and to preserve and stabilize family life.
History
(1979, c. 815, s. 1; 1981, c. 359, s. 1; 1991 (Reg. Sess., 1992), c. 923, s. 1; 1997-506, s. 31; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 2; 2015-123, s. 2.)
Cross References. - As to collaboration between Division of Social Services and Commission of Indian Affairs on Indian child welfare issues, see G.S. 143B-139.5A.
As to establishment of School-Based Child and Family Team Initiative, see note under G.S. 143B-366.
School-Based Child and Family Team Initiative. - Session Laws 2005-276, s. 6.24, provides for the development and implementation of a School-Based Child and Family Team Initiative. See note at G.S. 115C-105.20.
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Session Laws 1999-237, s. 11.27(a) provides that the Department of Health and Human Services, Division of Social Services, shall develop a plan, working with local departments of social services, to implement a dual response system of child protection in no fewer than two and no more than five demonstration areas in this State, where local child protective services and law enforcement work together as coinvestigators in serious abuse cases and where a family assessment and services approach is utilized.
Session Laws 1999-237, s. 1.1 provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 1999'."
Session Laws 1999-237, s. 30.2 provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1999-2001 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1999-2001 biennium."
Session Laws 1999-237, s. 30.4, contains a severability clause.
Session Laws 2009-126, s. 1(a) and (b), provides: "The Joint Legislative Program Evaluation Oversight Committee shall include in the 2009-2010 Work Plan for the Program Evaluation Division of the General Assembly a study of existing programs that directly or indirectly benefit children and youth in this State. The Division shall identify the programs and their sources of funding and determine whether the programs have clear goals, indicators, or benchmarks by which to measure the programs' success.
"The Program Evaluation Division shall submit its findings and recommendations to the Joint Legislative Program Evaluation Oversight Committee, the Joint Legislative Study Commission on Children and Youth, and the Fiscal Research Division at a date to be determined by the Joint Legislative Program Evaluation Oversight Committee."
Effect of Amendments. - Session Laws 2015-123, s. 2, effective January 1, 2016, deleted the former last paragraph, which read: "The provisions of this Article shall also apply to child care facilities as defined in G.S. 110-86."
Legal Periodicals. - For article, "In Re R.R.N.: Redefining ‘Caretaker' for North Carolina Child Protective Services," see 40 Campbell L. Rev. 265 (2018).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Due Process. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing an individual's
name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I,
§
19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible
Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).
Refusal to Permit Evaluation. - Respondent's refusal to permit the Child Mental Health Evaluation of his two sons based, in part, upon his religious beliefs was not constitutionally protected and did not afford him a lawful excuse for his interference
with the investigation by the Department of Social Services. In re Browning, 124 N.C. App. 190, 476 S.E.2d 465 (1996).
Family Privacy and Integrity. - State statutes granting authority to the Department of Social Services to prevent the abuse or neglect of children take into account families' fundamental interest in family privacy and integrity. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).
Report Did Not Constitute Report of Abuse, Neglect, or Dependency - Anonymous call, reporting a naked child two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, so the statutory investigative
mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; one of the initial responsibilities of any department of social services
was to screen a report for an ultimate determination of whether to investigate further, as not all reports constituted abuse, neglect, or dependency. In re Stumbo, 357 N.C. 279,
582 S.E.2d 255 (2003).
Department of Social Services Is Not Law Enforcement. - Defendant was not denied due process by a long pre-indictment delay because any purported delay on the part of the Department of Social Services (DSS) could not carry defendant's burden of showing
any intentional act on the part of the State to impair defendant's ability to defend himself or to gain tactical advantage over him; DSS is not a law enforcement agency, and it does not prosecute criminal cases. State v. Martin,
195 N.C. App. 43, 671 S.E.2d 53 (2009).
Department's Failure to Investigate All Potential Causes of Injuries - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Department's Failure to Investigate All Potential Causes of Injuries - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Applied in In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013).
Cited in In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001); In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867 (2004).
Opinions of Attorney General
Editor's Note. -
The opinions below were rendered under former Chapter 7A.
Investigation of Abuse and Neglect at Day-Care Facilities. - Former G.S. 7A-452 requires county departments of social services
to investigate reports of child abuse and child neglect at day-care facilities and day-care plans (now "child day care facilities"). See opinion of Attorney General to Mr. J. Randolph Riley, District Attorney, 51 N.C.A.G. 6 (1981).
Protection of Minor's Rights. - Although a minor cannot obtain legal representation without the consent of the legally responsible person, the rights of the child can be adequately protected. The Department of Social Services can conduct an investigation
of the legally responsible person pursuant to former G.S. 7A-542 et seq., the guardian ad litem program
can provide additional support for abused, neglected, or dependent juveniles, including legal support and, a minor receives representation for the commitment proceedings by virtue of G.S. 122C-224.1 and 122C-270. See opinion of Attorney General to C. Robin Britt, Sr., Secretary, Department of Human Resources, - N.C.A.G. - (December 20, 1995).
§ 7B-301. Duty to report abuse, neglect, dependency, or death due to maltreatment.
- Any person or institution who has cause to suspect that any juvenile is abused, neglected, or dependent, as defined by G.S. 7B-101, or has died as the result of maltreatment, shall report the case of that juvenile to the director of the department of social services in the county where the juvenile resides or is found. The report may be made orally, by telephone, or in writing. The report shall include information as is known to the person making it including the name and address of the juvenile; the name and address of the juvenile's parent, guardian, or caretaker; the age of the juvenile; the names and ages of other juveniles in the home; the present whereabouts of the juvenile if not at the home address; the nature and extent of any injury or condition resulting from abuse, neglect, or dependency; and any other information which the person making the report believes might be helpful in establishing the need for protective services or court intervention. If the report is made orally or by telephone, the person making the report shall give the person's name, address, and telephone number. Refusal of the person making the report to give a name shall not preclude the department's assessment of the alleged abuse, neglect, dependency, or death as a result of maltreatment.
- Any person or institution who knowingly or wantonly fails to report the case of a juvenile as required by subsection (a) of this section, or who knowingly or wantonly prevents another person from making a report as required by subsection (a) of this section, is guilty of a Class 1 misdemeanor.
- Repealed by Session Laws 2015-123, s. 3, effective January 1, 2016.
History
(1979, c. 815, s. 1; 1991 (Reg. Sess., 1992), c. 923, s. 2; 1993, c. 516, s. 4; 1997-506, s. 32; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 3; 2013-52, s. 7; 2015-123, s. 3.)
Cross References. - As to failure to report the disappearance of a child to law enforcement generally, see G.S. 14-318.5.
Editor's Note. - Session Laws 2013-52, s. 1, provides: This act may be cited as "Caylee's Law".
Session Laws 2013-52, s. 8, made the amendment to this section by Session Laws 2013-52, s. 7, applicable to offenses committed on or after December 1, 2013.
Effect of Amendments. - Session Laws 2013-52, s. 7, effective December 1, 2013, redesignated the formerly two undesignated paragraphs as present subsection (a); and added subsections (b) and (c). For applicability, see editor's note.
Session Laws 2015-123, s. 3, effective January 1, 2016, deleted the former last paragraph in subsection (a), relating to procedure followed when there is a report of child abuse in a child care facility; and deleted former subsection (c), which read: "A director of social services who receives a report of sexual abuse of a juvenile in a child care facility and who knowingly fails to notify the State Bureau of Investigation of the report pursuant to subsection (a) of this section is guilty of a Class 1 misdemeanor."
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Former G.S. 7A-543 (see now this section) makes no exceptions for extenuating circumstances in reporting suspected child abuse. White v. North Carolina State Bd. of Exmrs. of Practicing Psychologists, 97 N.C. App. 144, 388 S.E.2d 148, cert. denied, 326 N.C. 601, 393 S.E.2d 891 (1990).
The report referred to in former G.S. 7A-550 was clearly an initial report of child abuse, as specified in former G.S. 7A-544 (see now this section), which is to be made to the Director of the Department of Social Services. Coleman v. Cooper,
89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).
Immunity Under Former G.S. 7A-550. - In an action for malicious prosecution, defamation, intentional infliction of emotional distress, and negligence brought by a substitute teacher against a school system, the school system was held not liable for a
principal's reporting student complaints to the Department of Social Services as directed by G.S. 115C-400;
evidence established that the principal's reports were an accurate representation of the student's complaints, and the principal clearly acted in good faith. Davis v. Durham City Schools, 91 N.C. App. 520, 372 S.E.2d 318 (1988).
Statutory Good Faith Presumption Shields Reporter from Slander Per Se Action. - Summary judgment for the defendant on the issue of slander per se was appropriate where the plaintiff's description of retaliatory motives for defendant's report failed to
rebut the statutory presumption created in favor of the defendant by the child abuse reporting provisions of this section and G.S. 7B-309 which together provide immunity not merely conditional upon proof of good faith, but a "good faith" immunity which endows the reporter with the mandatory presumption that he or she acted in good faith. Dobson v. Harris, 352 N.C. 77,
530 S.E.2d 829 (2000).
Statement Not Privileged. - Wife's statements to persons alleging that the husband had sexual relations with the family dog were not privileged under G.S. 7B-301 which concerned the abuse or neglect of children. Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003).
Public Duty Doctrine Inapplicable. - A school resource officer, who allegedly knew that a teacher was facilitating sexual liaisons between a 14-year-old girl and an 18-year-old boy, was not required, nor was he permitted, to weigh the safety interests
of the public when he decided not to report the boy's possible statutory rape of the girl or the teacher's sexual exploitation of the girl and boy - rather, his duty to report abuse was imposed by statute and involved no deliberation
or discretionary consideration; thus, his failure to report known child abuse was outside the scope of conduct generally associated with law enforcement and the public duty doctrine did not bar the claim. Smith v. Jackson County
Bd. of Educ., 168 N.C. App. 452, 608 S.E.2d 399 (2005).
Abuse by Teacher. - Abuse by a teacher does not fall under the mandatory reporting duty. Ostwalt v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603 (W.D.N.C. 2008).
Investigator Had No Duty to Report Abuse by Teacher. - Negligent infliction of emotional distress claim filed against a law enforcement investigator who failed to report to the department of social services that a middle school teacher was engaging in
inappropriate contact with students was barred by the public duty doctrine because the investigator did not have a duty under G.S. 7B-101 and G.S. 7B-301 to report abuse by a teacher and the special relationship exception did not apply given that the investigator was not present in the middle school
on a day-to-day basis and did not have a direct relationship with students. Collum v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 598 (W.D.N.C. 2008).
Applied in In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010); In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS
957 (N.C. 2017).
Cited in Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001); In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001); In re A.K., 360 N.C. 449,
628 S.E.2d 753 (2006); State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299 (2006); Lueallen v. Lueallen, 249 N.C. App. 292, 790 S.E.2d 690 (2016).
§ 7B-302. Assessment by director; military affiliation; access to confidential information; notification of person making the report.
- When a report of abuse, neglect, or dependency is received, the director of the department of social services shall make a prompt and thorough assessment, using either a family assessment response or an investigative assessment response, in order to ascertain the facts of the case, including collecting information concerning the military affiliation of the parent, guardian, custodian, or caretaker of the juvenile alleged to have been abused or neglected, the extent of the abuse or neglect, and the risk of harm to the juvenile, in order to determine whether protective services should be provided or the complaint filed as a petition. When the report alleges abuse, the director shall immediately, but no later than 24 hours after receipt of the report, initiate the assessment. When the report alleges neglect or dependency, the director shall initiate the assessment within 72 hours following receipt of the report. When the report alleges abandonment of a juvenile or unlawful transfer of custody under G.S. 14-321.2, the director shall immediately initiate an assessment. When the report alleges abandonment, the director shall also take appropriate steps to assume temporary custody of the juvenile, and take appropriate steps to secure an order for nonsecure custody of the juvenile. The assessment and evaluation shall include a visit to the place where the juvenile resides, except when the report alleges abuse or neglect in a child care facility as defined in Article 7 of Chapter 110 of the General Statutes. When a report alleges abuse or neglect in a child care facility as defined in Article 7 of Chapter 110 of the General Statutes, a visit to the place where the juvenile resides is not required. When the report alleges abandonment, the assessment shall include a request from the director to law enforcement officials to investigate through the North Carolina Center for Missing Persons and other national and State resources whether the juvenile is a missing child.
-
All information received by the department of social services, including the identity of the reporter, shall be held in strictest confidence by the department, except under the following circumstances:
- The department shall disclose confidential information to any federal, State, or local government entity or its agent, or any private child placing or adoption agency licensed by the Department of Health and Human Services, in order to protect a juvenile from abuse or neglect. The disclosure of confidential information pursuant to this subdivision shall include sharing information with the appropriate military authority if the director finds evidence that a juvenile may have been abused or neglected and the parent, guardian, custodian, or caretaker of the juvenile alleged to have been abused or neglected has a military affiliation. Any confidential information disclosed to any federal, State, or local government entity or its agent under this subsection shall remain confidential with the other entity or its agent and shall only be redisclosed for purposes directly connected with carrying out that entity's mandated responsibilities.
- The department shall disclose confidential information regarding the identity of the reporter to any federal, State, or local government entity or its agent with a court order. The department may only disclose confidential information regarding the identity of the reporter to a federal, State, or local government entity or its agent without a court order when the entity demonstrates a need for the reporter's name to carry out the entity's mandated responsibilities.
- The information may be examined upon request by the juvenile's guardian ad litem or the juvenile, including a juvenile who has reached age 18 or been emancipated.
- A district or superior court judge of this State presiding over a civil matter in which the department of social services is not a party may order the department to release confidential information, after providing the department with reasonable notice and an opportunity to be heard and then determining that the information is relevant and necessary to the trial of the matter before the court and unavailable from any other source. This subdivision shall not be construed to relieve any court of its duty to conduct hearings and make findings required under relevant federal law, before ordering the release of any private medical or mental health information or records related to substance abuse or HIV status or treatment. The department of social services may surrender the requested records to the court, for in camera review, if the surrender is necessary to make the required determinations.
- A district or superior court judge of this State presiding over a criminal or delinquency matter shall conduct an in camera review prior to releasing to the defendant or juvenile any confidential records maintained by the department of social services, except those records the defendant or juvenile is entitled to pursuant to subdivision (2) of this subsection.
- The department may disclose confidential information to a parent, guardian, custodian, or caretaker in accordance with G.S. 7B-700 of this Subchapter.
- If the director, at any time after receiving a report that a juvenile may be abused, neglected, or dependent, determines that the juvenile's legal residence is in another county, the director shall promptly notify the director in the county of the juvenile's residence, and the two directors shall coordinate efforts to ensure that appropriate actions are taken.
- When a report of a juvenile's death as a result of suspected maltreatment or a report of suspected abuse, neglect, or dependency of a juvenile in a noninstitutional setting is received, the director of the department of social services shall immediately ascertain if other juveniles live in the home, and, if so, initiate an assessment in order to determine whether they require protective services or whether immediate removal of the juveniles from the home is necessary for their protection. When a report of a juvenile's death as a result of maltreatment or a report of suspected abuse, neglect, or dependency of a juvenile in an institutional setting such as a residential child care facility or residential educational facility is received, the director of the department of social services shall immediately ascertain if other juveniles remain in the facility subject to the alleged perpetrator's care or supervision, and, if so, assess the circumstances of those juveniles in order to determine whether they require protective services or whether immediate removal of those juveniles from the facility is necessary for their protection.
- If the assessment indicates that abuse, neglect, or dependency has occurred, the director shall decide whether immediate removal of the juvenile or any other juveniles in the home is necessary for their protection. If immediate removal does not seem necessary, the director shall immediately provide or arrange for protective services. If the parent, guardian, custodian, or caretaker refuses to accept the protective services provided or arranged by the director, the director shall sign a petition seeking to invoke the jurisdiction of the court for the protection of the juvenile or juveniles.
- If immediate removal seems necessary for the protection of the juvenile or other juveniles in the home, the director shall sign a petition that alleges the applicable facts to invoke the jurisdiction of the court. Where the assessment shows that it is warranted, a protective services worker may assume temporary custody of the juvenile for the juvenile's protection pursuant to Article 5 of this Chapter.
- Whenever a juvenile is removed from the home of a parent, guardian, custodian, stepparent, or adult relative entrusted with the juvenile's care due to physical abuse, the director shall conduct a thorough review of the background of the alleged abuser or abusers. This review shall include a criminal history check and a review of any available mental health records. If the review reveals that the alleged abuser or abusers have a history of violent behavior against people, the director shall petition the court to order the alleged abuser or abusers to submit to a complete mental health evaluation by a licensed psychologist or psychiatrist.
- In performing any duties related to the assessment of the report or the provision or arrangement for protective services, the director may consult with any public or private agencies or individuals, including the available State or local law enforcement officers who shall assist in the assessment and evaluation of the seriousness of any report of abuse, neglect, or dependency when requested by the director. The director or the director's representative may make a written demand for any information or reports, whether or not confidential, that may in the director's opinion be relevant to the assessment or provision of protective services. Upon the director's or the director's representative's request and unless protected by the attorney-client privilege, any public or private agency or individual shall provide access to and copies of this confidential information and these records to the extent permitted by federal law and regulations. If a custodian of criminal investigative information or records believes that release of the information will jeopardize the right of the State to prosecute a defendant or the right of a defendant to receive a fair trial or will undermine an ongoing or future investigation, it may seek an order from a court of competent jurisdiction to prevent disclosure of the information. In such an action, the custodian of the records shall have the burden of showing by a preponderance of the evidence that disclosure of the information in question will jeopardize the right of the State to prosecute a defendant or the right of a defendant to receive a fair trial or will undermine an ongoing or future investigation. Actions brought pursuant to this paragraph shall be set down for immediate hearing, and subsequent proceedings in the actions shall be accorded priority by the trial and appellate courts.
- Within five working days after receipt of the report of abuse, neglect, or dependency, the director shall give written notice to the person making the report, unless requested by that person not to give notice, as to whether the report was accepted for assessment and whether the report was referred to the appropriate State or local law enforcement agency.
- Within five working days after completion of the protective services assessment, the director shall give subsequent written notice to the person making the report, unless requested by that person not to give notice, as to whether there is a finding of abuse, neglect, or dependency, whether the county department of social services is taking action to protect the juvenile, and what action it is taking, including whether or not a petition was filed. The person making the report shall be informed of procedures necessary to request a review by the prosecutor of the director's decision not to file a petition. A request for review by the prosecutor shall be made within five working days of receipt of the second notification. The second notification shall include notice that, if the person making the report is not satisfied with the director's decision, the person may request review of the decision by the prosecutor within five working days of receipt. The person making the report may waive the person's right to this notification, and no notification is required if the person making the report does not identify himself to the director.
-
The director or the director's representative may not enter a private residence for assessment purposes without at least one of the following:
- The reasonable belief that a juvenile is in imminent danger of death or serious physical injury.
- The permission of the parent or person responsible for the juvenile's care.
- The accompaniment of a law enforcement officer who has legal authority to enter the residence.
- An order from a court of competent jurisdiction.
History
(1979, c. 815, s. 1; 1985, c. 205; 1991, c. 593, s. 1; 1991 (Reg. Sess., 1992), c. 923, s. 3; 1993, c. 516, s. 5; 1995, c. 411, s. 1; 1997-390, s. 3.1; 1998-202, s. 6; 1998-229, ss. 2, 19; 1999-190, s. 2; 1999-318, s. 2; 1999-456, s. 60; 2001-291, s. 1; 2003-304, s. 4.1; 2005-55, s. 4; 2006-205, s. 1; 2009-311, s. 1; 2012-153, s. 6; 2015-123, s. 4; 2016-94, s. 12C.1(e); 2016-115, s. 4; 2017-102, s. 2; 2019-201, s. 3(a).)
Cross References. - As to support for adoptive families at risk of dissolution, see G.S. 48-1-110.
Editor's Note. - The paragraphs in this section were designated as subsections (a) through (g) at the direction of the Revisor of Statutes.
Session Laws 2001-291, s. 6, provides: "The Department of Health and Human Services, Division of Public Health, shall develop recommendations for a plan to inform the public as to the provisions of this act [Session Laws 2001-291, the Infant Homicide Prevention Act, which decriminalized abandonment of an infant under seven days of age when that infant is voluntarily delivered to certain health care providers, law enforcement officials, social services personnel, or emergency medical service personnel]. The plan shall contain information on responsible parenting in addition to information about the provisions of the act. The plans shall be targeted at adolescents and young adults, and shall be developed in consultation with law enforcement officials, medical professionals, and representatives of the Department of Public Instruction. Not later than April 1, 2002, the Department of Health and Human Services shall report its recommendations, and the projected cost for implementing its recommendations, to the chairpersons of the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, the Senate Appropriations Committee on Justice and Public Safety, and the House Appropriations Subcommittee on Justice and Public Safety."
In addition to the plan developed pursuant to Session Laws 2001-291, s. 6, Session Laws 2003-284, s. 10.8B(a) and (b), effective July 1, 2003, provides: "(a) The Department of Health and Human Services, Division of Public Health and the Division of Social Services, shall incorporate education and awareness of the Infant Homicide Prevention Act pursuant to S.L. 2001-291, into other State-funded programs at the local level.
"(b) The Department shall report on its activities to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division not later than April 1, 2004."
Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003'."
Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium."
Session Laws 2003-284, s. 49.5, contains a severability clause.
This section was amended by Session Laws 2016-115, s. 4, in the coded bill drafting format provided by G.S. 120-20.1. The act failed to use underscoring to indicate the insertion of the word "juvenile" in subsection (a), which has been set out with the word "juvenile" in brackets at the direction of the Revisor of Statutes.
Session Laws 2016-115, s. 6, made the amendment to subsection (a) of this section by Session Laws 2016-115, s. 4, applicable to offenses committed on or after December 1, 2016.
Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"
Session Laws 2016-94, s. 39.7, is a severability clause.
Effect of Amendments. - Session Laws 2006-205, s. 1, effective August 8, 2006, added the last two sentences in subsection (a).
Session Laws 2009-311, s. 1, effective October 1, 2009, in subsection (a), deleted the former last three sentences, which read: "All information received by the department of social services, including the identity of the reporter, shall be held in strictest confidence by the department. However, the department of social services shall disclose confidential information to any federal, State, or local governmental entity or its agent needing confidential information to protect a juvenile from abuse and neglect. Any confidential information disclosed to any federal, State, or local governmental entity, or its agent, under this subsection shall remain confidential with the other governmental entity, or its agent, and shall only be redisclosed by the governmental entity or its agent for purposes directly connected with carrying out the governmental entity's or agent's mandated responsibilities."; added subsections (a1) and (a2); and, in subsections (c) and (d), substituted "petition" for "complaint".
Session Laws 2012-153, s. 6, effective October 1, 2012, in subsection (a1), substituted "except under the following circumstances" for "except that" at the end of the introductory language, and added subdivision (1a).
Session Laws 2015-123, s. 4, effective January 1, 2016, in subsection (a), deleted "except when the report alleges abuse or neglect in a child care facility as defined in Article 7 of Chapter 110 of the General Statutes" at the end of the fifth sentence, and deleted the former next-to-last sentence, which read: "When a report alleges abuse or neglect in a child care facility as defined in Article 7 of Chapter 110 of the General Statutes, a visit to the place where the juvenile resides is not required."
Session Laws 2016-94, s. 12C.1(e), effective July 1, 2016, in subdivision (a1)(1), inserted "or any private child placing or adoption agency licensed by the Department of Health and Human Services" in the first sentence and substituted "other entity" for "other government entity" in the second sentence.
Session Laws 2016-115, s. 4, effective December 1, 2016, in subsection (a), substituted "abandonment of a juvenile or unlawful transfer of custody under G.S. 14-321.2" for "abandonment of a juvenile" in the fourth sentence and inserted "When the report alleges abandonment, the director shall also" in the fifth sentence. See editor's note for applicability.
Session Laws 2017-102, s. 2, effective July 12, 2017, substituted "juvenile" for "[juvenile]" in the fourth sentence of subsection (a).
Session Laws 2019-201, s. 3(a), effective August 23, 2019, inserted "military affiliation" in the section catchline; inserted "including collecting information concerning the military affiliation of the parent, guardian, custodian, or caretaker of the juvenile alleged to have been abused or neglected" in the first sentence of subsection (a); and added the second sentence in subdivision (a1)(1).
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For comment, "The Child Abuse Amendments of 1984: Congress Is Calling North Carolina to Respond to the Baby Doe Dilemma," 20 Wake Forest L. Rev. 975 (1984).
For comment, "Charting a Course Between Scylla and Charybdis: Child Abuse Registries and Procedural Due Process," see 73 N.C.L. Rev. 2063 (1995).
For comment, "The Implications of In re L.M.T.: A Call to the North Carolina General Assembly to Reinstate Procedural Safeguards, a Parent's Right to Appeal, and the Importance of a Permanency Planning Order," see 38 Campbell L. Rev. 241 (2016).
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Purpose of Section. - One of the specific purposes of former G.S. 7A-544 (see now this section) was the protection of minors from harm. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied,
322 N.C. 834, 371 S.E.2d 275 (1988).
Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's
juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody
of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).
Violation of former G.S. 7A-544 (see now this section) could give rise to an action for negligence. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834,
371 S.E.2d 275 (1988).
Qualified Immunity for Department of Social Services Employees. - Employees of the Department of Social Services were entitled to qualified immunity in plaintiffs' action alleging a violation of plaintiffs' family privacy rights, where plaintiffs failed to establish that the employees acted outside of the authority granted them by this section, or so vigorously intruded into plaintiffs' family as to infringe their family privacy rights. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).
Public Duty Doctrine Not Extended to Department of Social Services. - Court of appeals declined to extend the public duty doctrine to cover a county, the county department of social services (DSS), DSS supervisory employees, and social workers because
the home assessment DSS was required to perform under G.S. 7B-302 was different from the mandatory statutory requirements of state agencies
to protect the public in general and law enforcement departments who exercised a general duty to protect the public at large. Christmas v. Cabarrus County, 192 N.C. App. 227, 664 S.E.2d 649 (2008),
review denied, 363 N.C. 372, 678 S.E.2d 234 (2009).
Family Privacy and Integrity. - State statutes granting authority to the Department of Social Services to prevent the abuse or neglect of children take into account families' fundamental interest in family privacy and integrity. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).
Department of Social Services employee did not act outside of the authority conferred on her by statute, or violate plaintiffs' rights to family privacy and integrity, by placing child in foster home or making telephone calls seeking information about child, after receiving reports that child was beaten by her father or otherwise abused. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).
Physical Entry Into Home. - The statute does not require physical entry into the home of a child who is the subject of an investigation; thus, where a social worker personally drives to the home and seeks to speak with the children in person but does
not seek to enter the home, such constitutes "a visit to the place where the juvenile resides." In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001).
Length of Investigation Did Not Violate Family's Privacy Rights. - Length of investigation by Department of Social Services Employee did not violate family's rights to privacy, where employee was required to extend his investigation beyond the allegations of the initial complaint alleging abuse by the many factors which suggested abuse may have occurred. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).
Investigation Not Revealing Abuse or Neglect. - Trial court lacked subject matter jurisdiction to enter orders finding the mother's four minor children to be abused an neglected after the county social services department of the neighboring county, due
to a conflict the county social services department had, conducted an investigation and found that allegations of abuse and neglect by the mother's church and the caretaker of the children were unfounded; once an official finding
that no abuse and neglect had occurred, the trial court lost the authority to declare that it had occurred and to determine that the four minor children should be removed from the custody of the caretaker. In re S.D.A.,
170 N.C. App. 354, 612 S.E.2d 362 (2005).
Insufficient Evidence of Neglect to Trigger Investigative Requirements - Anonymous call, reporting a naked child, two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, so the statutory
investigative mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; there was no evidence of a pattern of a lack of supervision
or other credible evidence that indicated a serious failing by the parents, and there was not sufficient evidence of neglect to trigger the investigative requirements of G.S. 7B-302.
In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).
Investigation Alone Insufficient for Entry of Protective Order. - Domestic violence protective order entered against a father pursuant to G.S. 50B-3 was erroneous because there was no competent evidence that the father had placed a member of the mother's family in fear of (1) imminent serious bodily injury or (2) continued harassment that rose to such a level as to inflict
substantial emotional distress; the fact that there was an investigation by the Department of Social Service was not relevant where there was no evidence presented regarding what any alleged investigation revealed. The director
of Department of Social Service was required to investigate any report of abuse, neglect, or dependency pursuant to G.S. 7B-302(a). Burress v. Burress,
195 N.C. App. 447, 672 S.E.2d 732 (2009).
For case reversing summary judgment in favor of defendants county and social worker as to their tort liability in failing to protect minors from harm, see Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d
2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).
Applied in In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017); In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).
Cited in In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).
Opinions of Attorney General
Consent to Drug Test. - A social worker conducting a child protective services assessment can legally ask a parent or caretaker suspected of substance abuse to consent to a urine screen. See opinion of Attorney General to Ms. Pheon E. Beal, Director, Division of Social Services, 2003 N.C.A.G. 8 (9/12/03).
§ 7B-303. Interference with assessment.
- If any person obstructs or interferes with an assessment required by G.S. 7B-302, the director may file a petition naming that person as respondent and requesting an order directing the respondent to cease the obstruction or interference. The petition shall contain the name and date of birth and address of the juvenile who is the subject of the assessment; shall include a concise statement of the basis for initiating the assessment, shall specifically describe the conduct alleged to constitute obstruction of or interference with the assessment; and shall be verified.
- For purposes of this section, obstruction of or interference with an assessment means refusing to disclose the whereabouts of the juvenile, refusing to allow the director to have personal access to the juvenile, refusing to allow the director to observe or interview the juvenile in private, refusing to allow the director access to confidential information and records upon request pursuant to G.S. 7B-302, refusing to allow the director to arrange for an evaluation of the juvenile by a physician or other expert, or other conduct that makes it impossible for the director to carry out the duty to assess the juvenile's condition.
- Upon filing of the petition, the court shall schedule a hearing to be held not less than five days after service of the petition and summons on the respondent. Service of the petition and summons and notice of hearing shall be made as provided by the Rules of Civil Procedure on the respondent; the juvenile's parent, guardian, custodian, or caretaker; and any other person determined by the court to be a necessary party. If at the hearing on the petition the court finds by clear, cogent, and convincing evidence that the respondent, without lawful excuse, has obstructed or interfered with an assessment required by G.S. 7B-302, the court may order the respondent to cease such obstruction or interference. The burden of proof shall be on the petitioner.
- If the director has reason to believe that the juvenile is in need of immediate protection or assistance, the director shall so allege in the petition and may seek an ex parte order from the court. If the court, from the verified petition and any inquiry the court makes of the director, finds probable cause to believe both that the juvenile is at risk of immediate harm and that the respondent is obstructing or interfering with the director's ability to assess the juvenile's condition, the court may enter an ex parte order directing the respondent to cease the obstruction or interference. The order shall be limited to provisions necessary to enable the director to conduct an assessment sufficient to determine whether the juvenile is in need of immediate protection or assistance. Within 10 days after the entry of an ex parte order under this subsection, a hearing shall be held to determine whether there is good cause for the continuation of the order or the entry of a different order. An order entered under this subsection shall be served on the respondent along with a copy of the petition, summons, and notice of hearing.
- The director may be required at a hearing under this section to reveal the identity of any person who made a report of suspected abuse, neglect, or dependency as required by G.S. 7B-301.
- An order entered pursuant to this section is enforceable by civil or criminal contempt as provided in Chapter 5A of the General Statutes.
History
(1987, c. 409, s. 1; 1993, c. 516, s. 6; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 5.)
CASE NOTES
Editor's Note. - Most of the following cases were decided prior to the enactment of this Chapter.
Lawful Excuse. - The "lawful excuse" provision in subsection (c) does not permit parents to interfere with or obstruct a child neglect or abuse investigation on Fourth Amendment grounds where neither a search nor a seizure is involved. In re Stumbo,
143 N.C. App. 375, 547 S.E.2d 451 (2001).
Statutory Investigative Mandate Not Properly Invoked Against Parents - Anonymous call, reporting a naked child, two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, and, therefore,
the statutory investigative mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; there was no evidence of a pattern of a lack
of supervision or other credible evidence that indicated a serious failing by the parents. In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).
Purpose of Hearing. - The purpose of a hearing under subsection (c) is to determine whether the respondents have obstructed or interfered with an investigation without lawful excuse, not to determine whether the underlying incident which led to the allegation
of neglect or abuse actually involved neglect or abuse. In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001).
Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's
juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody
of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).
Damages and Attorney's Fees Not Recoverable. - United States District Court found no provision in former G.S. 7A-544.1 that would allow the plaintiffs to seek damages or attorneys' fees from the Department of Social Services in Obstruction Petition proceedings. Renn ex rel. Renn v. Garrison, 845 F. Supp. 1127 (E.D.N.C. 1994).
Refusal to Permit Evaluation. - Respondent's refusal to permit the Child Mental Health Evaluation of his two sons based, in part, upon his religious beliefs was not constitutionally protected and did not afford him a lawful excuse for his interference
with the investigation by the Department of Social Services. In re Browning, 124 N.C. App. 190, 476 S.E.2d 465 (1996).
§ 7B-304: Repealed by Session Laws 2003, c. 140, s. 1, effective June 4, 2003.
§ 7B-305. Request for review by prosecutor.
The person making the report shall have five working days, from receipt of the decision of the director of the department of social services not to petition the court, to notify the prosecutor that the person is requesting a review. The prosecutor shall notify the person making the report and the director of the time and place for the review, and the director shall immediately transmit to the prosecutor a copy of a summary of the assessment.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 6.)
CASE NOTES
Applied in In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).
§ 7B-306. Review by prosecutor.
The prosecutor shall review the director's determination that a petition should not be filed within 20 days after the person making the report is notified. The review shall include conferences with the person making the report, the protective services worker, the juvenile, if practicable, and other persons known to have pertinent information about the juvenile or the juvenile's family. At the conclusion of the conferences, the prosecutor may affirm the decision made by the director, may request the appropriate local law enforcement agency to investigate the allegations, or may direct the director to file a petition.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 7; 1993, c. 516, s. 7; 1998-202, s. 6; 1999-456, s. 60.)
CASE NOTES
Editor's Note. - The following case was decided prior to the enactment of this Chapter.
When Right to Counsel Attaches. - The trial court and the Court of Appeals erred in a prosecution for first-degree statutory sexual offense and two counts of felonious child abuse by suppressing defendant's incriminating statement to officers as being
taken in violation of the Sixth Amendment to the United States Constitution. The filing of a petition alleging abuse and neglect commences a civil proceeding, and by its terms, the Sixth Amendment applies only to criminal cases.
The Supreme Court could not say, as did the Court of Appeals, that the civil and criminal proceedings were so intertwined that the commencement of the civil proceeding triggered the protection involved in a criminal case. State
v. Adams, 345 N.C. 745, 483 S.E.2d 156 (1997).
Applied in In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).
§ 7B-307. Duty of director to report evidence of abuse, neglect; investigation by local law enforcement; notification to appropriate military authority; notification of Department of Health and Human Services.
- If the director finds evidence that a juvenile may have been abused as defined by G.S. 7B-101, the director shall make an immediate oral and subsequent written report of the findings to the district attorney or the district attorney's designee and the appropriate local law enforcement agency, including notifying the appropriate military authority that there is evidence of abuse or neglect of a juvenile by a parent, guardian, custodian, or caretaker with that military affiliation, within 48 hours after receipt of the report. The local law enforcement agency shall immediately, but no later than 48 hours after receipt of the information, initiate and coordinate a criminal investigation with the protective services assessment being conducted by the county department of social services. Upon completion of the investigation, the district attorney shall determine whether criminal prosecution is appropriate and may request the director or the director's designee to appear before a magistrate.
- , (c) Repealed by Session Laws 2015-123, s. 5, effective January 1, 2016.
If the director receives information that a juvenile may have been physically harmed in violation of any criminal statute by any person other than the juvenile's parent, guardian, custodian, or caretaker, the director shall make an immediate oral and subsequent written report of that information to the district attorney or the district attorney's designee and to the appropriate local law enforcement agency within 48 hours after receipt of the information. The local law enforcement agency shall immediately, but no later than 48 hours after receipt of the information, initiate a criminal investigation. Upon completion of the investigation, the district attorney shall determine whether criminal prosecution is appropriate.
If the report received pursuant to G.S. 7B-301 involves abuse or neglect of a juvenile or child maltreatment, as defined in G.S. 110-105.3, in child care, the director shall notify the Department of Health and Human Services within 24 hours or on the next working day of receipt of the report.
The director of the department of social services shall submit a report of alleged abuse, neglect, or dependency cases or child fatalities that are the result of alleged maltreatment to the central registry under the policies adopted by the Social Services Commission.
History
(1979, c. 815, s. 1; 1983, c. 199; 1985, c. 757, s. 156(s)-(u); 1991, c. 593, s. 2; 1991 (Reg. Sess., 1992), c. 923, s. 4; 1993, c. 516, s. 8; 1997-443, s. 11A.118(a); 1997-506, s. 33; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 7; 2015-123, s. 5; 2019-201, s. 3(b).)
Editor's Note. - Session Laws 2015-123, s. 5, amended this section by deleting subsection (b) and the first paragraph of subsection (c), leaving the final paragraph of (c) in the section. The section has been set out in the form above at the direction of the Revisor of Statutes.
Effect of Amendments. - Session Laws 2015-123, s. 5, effective January 1, 2016, deleted "and State Bureau of Investigation" at the end of the section heading; inserted "or child maltreatment, as defined in G.S. 110-105.3" in the last sentence of subsection (a); and deleted former subsection (b) and the former first paragraph in subsection (c), relating to abuse of a child in a child care facility.
Session Laws 2019-201, s. 3(b), effective August 23, 2019, inserted "notification to appropriate military authority" in the section heading; and inserted "including notifying the appropriate military authority that there is evidence of abuse or neglect of a juvenile by a parent, guardian, custodian, or caretaker with that military affiliation" in the first sentence of subsection (a).
Legal Periodicals. - For article, "Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment," see 67 N.C.L. Rev. 257 (1989).
CASE NOTES
Editor's Note. - One of the following cases was decided prior to the enactment of this Chapter.
Social Worker's Role Changed to Agent of State. - In a case involving crimes against child victim where a social worker went beyond merely fulfilling her role as the victim's social worker and began working with the sheriff's department on the case prior
to interviewing defendant, the social worker's role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred
in denying defendant's motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, appeal dismissed,
333 N.C. 463, 427 S.E.2d 626 (1993).
Cited in State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53 (2009).
§ 7B-308. Authority of medical professionals in abuse cases.
- Any physician or administrator of a hospital, clinic, or other medical facility to which a suspected abused juvenile is brought for medical diagnosis or treatment shall have the right, when authorized by the chief district court judge of the district or the judge's designee, to retain physical custody of the juvenile in the facility when the physician who examines the juvenile certifies in writing that the juvenile who is suspected of being abused should remain for medical treatment or that, according to the juvenile's medical evaluation, it is unsafe for the juvenile to return to the juvenile's parent, guardian, custodian, or caretaker. This written certification must be signed by the certifying physician and must include the time and date that the judicial authority to retain custody is given. Copies of the written certification must be appended to the juvenile's medical and judicial records and another copy must be given to the juvenile's parent, guardian, custodian, or caretaker. The right to retain custody in the facility shall exist for up to 12 hours from the time and date contained in the written certification.
-
Immediately upon receipt of judicial authority to retain custody, the physician, the administrator, or that person's designee shall so notify the director of social services for the county in which the facility is located. The director shall treat this
notification as a report of suspected abuse and shall immediately begin an assessment of the case.
- If the assessment reveals (i) that it is the opinion of the certifying physician that the juvenile is in need of medical treatment to cure or alleviate physical distress or to prevent the juvenile from suffering serious physical injury, and (ii) that it is the opinion of the physician that the juvenile should for these reasons remain in the custody of the facility for 12 hours, but (iii) that the juvenile's parent, guardian, custodian, or caretaker cannot be reached or, upon request, will not consent to the treatment within the facility, the director shall within the initial 12-hour period file a juvenile petition alleging abuse and setting forth supporting allegations and shall seek a nonsecure custody order. A petition filed and a nonsecure custody order obtained in accordance with this subdivision shall come on for hearing under the regular provisions of this Subchapter unless the director and the certifying physician together voluntarily dismiss the petition.
- In all cases except those described in subdivision (1) above, the director shall conduct the assessment and may initiate juvenile proceedings and take all other steps authorized by the regular provisions of this Subchapter. If the director decides not to file a petition, the physician, the administrator, or that person's designee may ask the prosecutor to review this decision according to the provisions of G.S. 7B-305 and G.S. 7B-306.
- If, upon hearing, the court determines that the juvenile is found in a county other than the county of legal residence, in accord with G.S. 153A-257, the juvenile may be transferred, in accord with G.S. 7B-903(2), to the custody of the department of social services in the county of residence.
- If the court, upon inquiry, determines that the medical treatment rendered was necessary and appropriate, the cost of that treatment may be charged to the parents, guardian, custodian, or caretaker, or, if the parents are unable to pay, to the county of residence in accordance with G.S. 7B-903 and G.S. 7B-904.
- Except as otherwise provided, a petition begun under this section shall proceed in like manner with petitions begun under G.S. 7B-302.
- The procedures in this section are in addition to, and not in derogation of, the abuse and neglect reporting provisions of G.S. 7B-301 and the temporary custody provisions of G.S. 7B-500. Nothing in this section shall preclude a physician or administrator and a director of social services from following the procedures of G.S. 7B-301 and G.S. 7B-500 whenever these procedures are more appropriate to the juvenile's circumstances.
History
(1979, c. 815, s. 1; 1981, c. 716, s. 2; 1995, c. 255, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 8.)
Legal Periodicals. - For survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).
For comment, "The Child Abuse Amendments of 1984: Congress Is Calling North Carolina to Respond to the Baby Doe Dilemma," 20 Wake Forest L. Rev. 975 (1984).
For article, "Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment," see 67 N.C.L. Rev. 257 (1989).
CASE NOTES
Editor's Note. - The following case was decided prior to the enactment of this Chapter.
The medical evaluation of juveniles is of critical importance in proceedings involving allegations of abuse and neglect under the Juvenile Code (formerly G.S. 7A-516 et seq. [see now G.S. 7B-100 et seq.]). In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).
Applied in In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).
§ 7B-309. Immunity of persons reporting and cooperating in an assessment.
Anyone who makes a report pursuant to this Article; cooperates with the county department of social services in a protective services assessment; testifies in any judicial proceeding resulting from a protective services report or assessment; provides information or assistance, including medical evaluations or consultation in connection with a report, investigation, or legal intervention pursuant to a good-faith report of child abuse or neglect; or otherwise participates in the program authorized by this Article; is immune from any civil or criminal liability that might otherwise be incurred or imposed for that action provided that the person was acting in good faith. In any proceeding involving liability, good faith is presumed.
History
(1979, c. 815, s. 1; 1981, s. 469, s. 8; 1993, c. 516, s. 9; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 9; 2019-240, s. 18.)
Effect of Amendments. - Session Laws 2019-240, s. 18, effective November 6, 2019, inserted "assessment; provides information or assistance, including medical evaluations or consultation in connection with a report, investigation, or legal intervention pursuant to a good-faith report of child abuse or neglect"; and made stylistic changes.
CASE NOTES
Editor's Note. - Most of the following cases were decided prior to the enactment of this Chapter.
Intent of Section. - Former G.S. 7A-550 (see now this section) was intended to encourage citizens to report suspected instances of child abuse to the Director of the Department of Social Services without fear of potential liability if the report was made
in good faith. It has no application to employees of DSS in the performance of their official duties. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834,
371 S.E.2d 275 (1988).
Scope of Immunity. - When suspected child abuse occurs in a public school classroom, a report made in good faith by the principal of the school to his or her superior who is responsible for school personnel would clearly fall within the scope of the immunity
contemplated by the statute. Davis v. Durham City Schools, 91 N.C. App. 520, 372 S.E.2d 318 (1988).
Statutory Good Faith Presumption Shields Reporter from Slander Per Se Action. - Summary judgment for the defendant on the issue of slander per se was appropriate where the plaintiff's description of retaliatory motives for defendant's report failed to
rebut the statutory presumption created in favor of the defendant by the child abuse reporting provisions of G.S. 7B-301 and this section
which together provide immunity not merely conditional upon proof of good faith, but a "good faith" immunity which endows the reporter with the mandatory presumption that he or she acted in good faith. Dobson v. Harris, 352 N.C. 77,
530 S.E.2d 829 (2000).
The report referred to in this section is clearly an initial report of child abuse, as specified in former G.S. 7A-543 (see now G.S. 7B-301), which is to be
made to the Director of the Department of Social Services. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).
Malicious Actions. - Where plaintiff alleged that defendant made false accusations of child abuse and neglect and injury and forecast evidence that the defendant knew the report to be false, a genuine issue of material fact existed - particularly as to whether the defendant acted with malice and therefore lost the immunity accorded by former 7A-550 - to withstand summary judgment in a slander per se cause of action. Dobson v. Harris, 134 N.C. App. 573, 521 S.E.2d 710 (1999), cert. denied, 351 N.C. 187, 541 S.E.2d 728 (1999).
Trial court correctly held that the wife's statements to the social services department that the husband molested her two sons were made with actual malice, and therefore negated any defense of privilege under G.S. 7B-309.
Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003).
§ 7B-310. Privileges not grounds for failing to report or for excluding evidence.
No privilege shall be grounds for any person or institution failing to report that a juvenile may have been abused, neglected, or dependent, even if the knowledge or suspicion is acquired in an official professional capacity, except when the knowledge or suspicion is gained by an attorney from that attorney's client during representation only in the abuse, neglect, or dependency case. No privilege, except the attorney-client privilege, shall be grounds for excluding evidence of abuse, neglect, or dependency in any judicial proceeding (civil, criminal, or juvenile) in which a juvenile's abuse, neglect, or dependency is in issue nor in any judicial proceeding resulting from a report submitted under this Article, both as this privilege relates to the competency of the witness and to the exclusion of confidential communications.
History
(1979, c. 815, s. 1; 1987, c. 323, s. 1; 1993, c. 514, s. 3; c. 516, s. 10; 1995, c. 509, s. 133; 1998-202, s. 6; 1999-456, s. 60.)
Legal Periodicals. - For note on spousal testimony in criminal proceedings, see 17 Wake Forest L. Rev. 990 (1981).
For comment, "The Child Abuse Amendments of 1984: Congress Is Calling North Carolina to Respond to the Baby Doe Dilemma," 20 Wake Forest L. Rev. 975 (1984).
For article, "Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment," see 67 N.C.L. Rev. 257 (1989).
CASE NOTES
Editor's Note. - Most of the following cases were decided prior to the enactment of this Chapter.
G.S. 8-53.1 is read in pari materia with the Juvenile Code, and in particular with former G.S. 7A-551 (see now this section). State
v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983); State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).
Privilege Not Available in Child Abuse Cases. - By virtue of G.S. 8-53.1 and former G.S. 7A-551 (see now this section), the physician-patient privilege, created by G.S. 8-53 is not available in cases involving child abuse. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).
Under G.S. 7B-310, a trial court in a child neglect case did not err in admitting certain evidence in violation of a mother's psychologist-patient privilege;
that privilege did not operate to bar relevant evidence in an action that concerned the abuse or neglect of a child. In re K.D., 178 N.C. App. 322, 631 S.E.2d 150 (2006).
Public Duty Doctrine Inapplicable. - A school resource officer, who allegedly knew that a teacher was facilitating sexual liaisons between a 14-year-old girl and an 18-year-old boy, was not required, nor was he permitted, to weigh the safety interests
of the public when he decided not to report the boy's possible statutory rape of the girl or the teacher's sexual exploitation of the girl and boy - rather, his duty to report abuse was imposed by statute and involved no deliberation
or discretionary consideration; thus, his failure to report known child abuse was outside the scope of conduct generally associated with law enforcement and the public duty doctrine did not bar the claim. Smith v. Jackson County
Bd. of Educ., 168 N.C. App. 452, 608 S.E.2d 399 (2005).
G.S. 8-53.1 and former G.S. 7A-551 (see now this section) plainly facilitate the prosecution of child abusers, without regard to whether
the medical information was obtained before or after the accused was officially charged with a crime. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).
The medical evaluation of juveniles is of critical importance in proceedings involving allegations of abuse and neglect under the Juvenile Code. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).
Evidence That Defendant in Sexual Abuse Case Had Sexually Transmittable Disease. - Unequivocal evidence that a seven-year-old girl had been sexually abused would invoke former G.S. 7A-551 (see now this section) and G.S. 8-53.1. Therefore, medical records maintained by a county health department, revealing that defendant had been treated for gonorrhea, were admissible as evidence with regard to the cause or source of the child's disease. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983).
Any privilege which defendant, who sought treatment of a sexually transmittable disease after he had been charged with sexual crimes against his children and taken into custody, might have been entitled to by G.S. 8-53 was nullified by G.S. 8-53.1 and former G.S. 7A-551 (see now this section). State v. Etheridge, 319 N.C. 34,
352 S.E.2d 673 (1987).
§ 7B-311. Central registry; responsible individuals list.
- The Department of Health and Human Services shall maintain a central registry of abuse, neglect, and dependency cases and child fatalities that are the result of alleged maltreatment that are reported under this Article in order to compile data for appropriate study of the extent of abuse and neglect within the State and to identify repeated abuses of the same juvenile or of other juveniles in the same family. This data shall be furnished by county directors of social services to the Department of Health and Human Services and shall be confidential, subject to rules adopted by the Social Services Commission providing for its use for study and research and for other appropriate disclosure. Data shall not be used at any hearing or court proceeding unless based upon a final judgment of a court of law.
-
The Department shall also maintain a list of responsible individuals. The Department may provide information from this list to child caring institutions, child placing agencies, group home facilities, and other providers of foster care, child care, or
adoption services that need to determine the fitness of individuals to care for or adopt children. The name of an individual who has been identified as a responsible individual shall be placed on the responsible individuals list
only after one of the following:
- The individual is properly notified pursuant to G.S. 7B-320 and fails to file a petition for judicial review in a timely manner.
- The court determines that the individual is a responsible individual as a result of a hearing on the individual's petition for judicial review.
- The individual is criminally convicted as a result of the same incident involved in an investigative assessment response.
- It is unlawful for any public official or public employee to knowingly and willfully release information from either the central registry or the responsible individuals list to a person who is not authorized to receive the information. It is unlawful for any person who is authorized to receive information from the central registry or the responsible individuals list to release that information to an unauthorized person. It is unlawful for any person who is not authorized to receive information from the central registry or the responsible individuals list to access or attempt to access that information. A person who commits an offense described in this subsection is guilty of a Class 3 misdemeanor.
-
The Social Services Commission shall adopt rules regarding the operation of the central registry and responsible individuals list, including procedures for each of the following:
- Filing data.
- Notifying an individual that the individual has been determined by the director to be a responsible individual.
- Correcting and expunging information.
- Determining persons who are authorized to receive information from the responsible individuals list.
- Releasing information from the responsible individuals list to authorized requestors.
- Gathering statistical information.
- Keeping and maintaining information placed in the registry and on the responsible individuals list.
- Repealed by Session Laws 2010-90, s. 4, effective July 11, 2010.
History
(1979, c. 815, s. 1; 1993, c. 516, s. 11; 1997-443, s. 11A.118(a); 1998-202, s. 6; 1999-456, s. 60; 2005-399, s. 2; 2010-90, s. 4; 2013-129, s. 3.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to sub-subdivision (b)(2) by Session Laws 2013-129, s. 3, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 4, effective July 11, 2010, in the introductory paragraph of subsection (b), in the first sentence, deleted "identified by county directors of social services as the result of investigative assessment responses" from the end, and added the last sentence; added subdivisions (b)(1) through (b)(3); in the introductory paragraph of subsection (d), added "procedures for each of the following"; in subdivisions (d)(1) and (d)(3), deleted "Procedures for" from the beginning and made a related stylistic change; rewrote subdivision (d)(2), which formerly read: "Procedures for notifying a responsible individual of a determination of abuse or serious neglect"; and deleted subdivision (d)(8), which read: "A definition of 'serious neglect'."
Session Laws 2013-129, s. 3, effective October 1, 2013, substituted "on the individual's petition for judicial review" for "either" in subdivision (b)(2); and deleted sub-subdivisions (b)(2)a and (b)(2)b. For applicability, see editor's note.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Constitutionality. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing
an individual's name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I,
§
19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible
Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).
Jurisdiction. - Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old
at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate
was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Placement of Name on Responsible Individuals List Proper. - Trial court did not err in placing a stepmother's name on the Responsible Individuals List (RIL) because the child's testimony tended to establish that when the stepmother struck him in the head
it was intentional; because the name of an individual identified as a responsible individual had to be placed on the RIL after it was determined the individual was a responsible individual, the statute required the trial court
to conclude that the stepmother's name had to be placed on the RIL. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Cited in In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013); In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015); Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462 (2017).
§§ 7B-312 through 7B-319: Reserved for future codification purposes.
ARTICLE 3A. Judicial Review; Responsible Individuals List.
Sec.
§ 7B-320. Notification to individual determined to be a responsible individual.
- After the completion of an investigative assessment response that results in a determination of abuse or serious neglect and the identification of a responsible individual, the director shall personally deliver written notice of the determination to the identified individual in an expeditious manner.
- If personal written notice is not made within 15 days of the determination and the director has made diligent efforts to locate the identified individual, the director shall send the notice to the individual by registered or certified mail, return receipt requested, and addressed to the individual at the individual's last known address.
-
The notice shall include all of the following:
- A statement informing the individual of the nature of the investigative assessment response and whether the director determined abuse or serious neglect or both.
- A statement that the individual has been identified as a responsible individual.
- A statement summarizing the substantial evidence supporting the director's determination without identifying the reporter or collateral contacts.
- A statement informing the individual that unless the individual petitions for judicial review, the individual's name will be placed on the responsible individuals list as provided in G.S. 7B-311, and that the Department of Health and Human Services may provide information from this list to child caring institutions, child placing agencies, group home facilities, and other providers of foster care, child care, or adoption services that need to determine the fitness of individuals to care for or adopt children.
- A clear description of the actions the individual must take to seek judicial review of the director's determination.
- In addition to the notice, the director shall provide the individual with a copy of a petition for judicial review form.
History
(2005-399, s. 3; 2010-90, s. 5; 2013-129, s. 4; 2019-33, s. 3.)
Editor's Note. - Session Laws 2005-399, s. 5, made this Article effective October 1, 2005, and applicable to investigative assessment responses initiated by county departments of social services on or after that date.
Session Laws 2005-399, s. 3, enacted this section as G.S. 7B-312. It has been renumbered as this section at the direction of the Revisor of Statutes.
Session Laws 2010-90, s. 5, substituted "Judicial Review" for "Expunction" in the Article heading.
Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 4, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 5, effective July 11, 2010, rewrote the section catchline, which formerly read: "Notification to individual responsible for abuse or substantial neglect"; rewrote subsections (a) and (b); added subdivision (c)(1a); in subdivision (c)(3), inserted "unless the individual petitions for judicial review" and substituted "will be placed" for "has been placed"; rewrote subdivision (c)(4); and added subsection (d).
Session Laws 2013-129, s. 4, effective October 1, 2013, in subsection (b), inserted "and the director has made diligent efforts to locate the identified individual" following "within 15 days of the determination" and substituted "notice to the individual by registered or certified mail, return receipt requested" for "notice to the identified individual by registered or certified mail, restricted delivery, return receipt requested"; and deleted "and instructions for how to file and serve the petition" following "form" in subsection (d). For applicability, see editor's note.
Session Laws 2019-33, s. 3, effective October 1, 2019, in subsection (a), deleted "Within five working days" at the beginning and added "in an expeditious manner" at the end.
CASE NOTES
Constitutionality. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing
an individual's name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I,
§
19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible
Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).
Jurisdiction. - Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old
at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate
was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Time Limitations. - District court properly concluding a petitioner's name should not be included on the Responsible Individuals List because Department of Social Services' multi-year delay - almost four years - even well beyond the statute of limitations
to prosecute for a misdemeanor criminal charge, deprived the petitioner of his ability to mount a defense to preserve his protected liberty interest. In re Harris, 265 N.C. App. 194, 828 S.E.2d 559 (2019).
Right to Jury Trial. - While the trial court's denial of petitioner's motion for a jury trial was immediately reviewable because it affected a substantial right, petitioner had no right to a jury trial as to his placement on the responsible individuals
list because the proceeding was unknown at the common law and thus, not subject to the constitutional right to a jury trial. In re Duncan, 262 N.C. App. 395, 822 S.E.2d 467 (2018).
Cited in In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).
§§ 7B-321, 7B-322: Repealed by Session Laws 2010-90, s. 6, effective July 11, 2010.
History
(§§ 7B-321, 7B-322: 2005-399, s. 3, repealed by 2010-90, s. 6, effective July 11, 2010.)
Editor's Note. - Former G.S. 7B-321 pertained to requests for expunction; director review. Former G.S. 7B-322 pertained to district attorney review expunction request.
§ 7B-323. Petition for judicial review; district court.
- Within 15 days of the receipt of notice of the director's determination under G.S. 7B-320(a) or (b), an individual may file a petition for judicial review with the district court of the county in which the abuse or serious neglect report arose. The request shall be by a petition for judicial review filed with the appropriate clerk of court's office with a copy delivered in person or by certified mail, return receipt requested, to the director who determined the abuse or serious neglect and identified the individual as a responsible individual. The petition for judicial review shall contain the name, date of birth, and address of the individual seeking judicial review, the name of the juvenile who was the subject of the determination of abuse or serious neglect, and facts that invoke the jurisdiction of the court. Failure to timely file a petition for judicial review constitutes a waiver of the individual's right to a district court hearing and to contest the placement of the individual's name on the responsible individuals list.
- If the director cannot show that the individual has received actual notice, the director shall not place the individual on the responsible individuals list until an ex parte hearing is held at which a district court judge determines that the director made diligent efforts to find the individual. A finding that the individual is evading service is relevant to the determination that the director made diligent efforts.
- The clerk of court shall maintain a separate docket for judicial review actions. Upon the filing of a petition for judicial review, the clerk shall calendar the matter for hearing within 45 days from the date the petition is filed at a session of district court hearing juvenile matters or, if there is no such session, at the next session of juvenile court. The clerk shall send notice of the hearing to the petitioner and to the director who determined the abuse or serious neglect and identified the individual as a responsible individual. Upon the request of a party, the court shall close the hearing to all persons, except officers of the court, the parties, their witnesses, and law enforcement investigating the same allegations. At the hearing, the director shall have the burden of proving by a preponderance of the evidence the abuse or serious neglect and the identification of the individual seeking judicial review as a responsible individual. The hearing shall be before a judge without a jury. The rules of evidence applicable in civil cases shall apply. However, the court, in its discretion, may permit the admission of any reliable and relevant evidence, including, but not limited to, child medical evaluation reports and child and family evaluation reports that the director relied on to make the determination that abuse or serious neglect occurred, if the general purposes of the rules of evidence and the interests of justice will best be served by its admission.
- Upon receipt of a notice of hearing for judicial review, the director who identified the individual as a responsible individual shall review all records, reports, and other information gathered during the investigative assessment response. If after a review, the director determines that there is not sufficient evidence to support a determination that the individual abused or seriously neglected the juvenile and is a responsible individual, the director shall prepare a written statement of the director's determination and either deliver the statement personally to the individual seeking judicial review or send the statement by first-class mail. The director shall also give written notice of the director's determination to the clerk to be placed in the court file, and the judicial review hearing shall be cancelled with notice of the cancellation given by the clerk to the petitioner.
-
At the hearing, the following rights of the parties shall be preserved:
- The right to present sworn evidence, law, or rules that bear upon the case.
- The right to represent themselves or obtain the services of an attorney at their own expense.
- The right to subpoena witnesses, cross-examine witnesses of the other party, and make a closing argument summarizing the party's view of the case and the law.
- Within 30 days after completion of the hearing, the court shall enter an order containing findings of fact and conclusions of law. The clerk shall serve a copy of the order on each party or the party's attorney of record. If the court concludes that the director has not established by a preponderance of the evidence abuse or serious neglect or the identification of the responsible individual, the court shall reverse the director's determination and order the director not to place the individual's name on the responsible individuals list. If the court concludes that the director has established by a preponderance of the evidence abuse or serious neglect and the identification of the individual seeking judicial review as a responsible individual, the court shall order the director to place the individual's name on the responsible individuals list, consistent with the court's order.
- Notwithstanding any time limitations contained in this section or the provisions of G.S. 7B-324(a)(4), upon the filing of a petition for judicial review by an individual identified by a director as a responsible individual, the district court of the county in which the abuse or neglect report arose may review a director's determination of abuse or serious neglect at any time if the review serves the interests of justice or for extraordinary circumstances. If the district court undertakes such a review, a hearing shall be held pursuant to this section at which the director shall have the burden of establishing by a preponderance of the evidence abuse or serious neglect and the identification of the individual seeking judicial review as a responsible individual. If the court concludes that the director has not established by a preponderance of the evidence abuse or serious neglect or the identification of the responsible individual, the court shall reverse the director's determination and order the director to expunge the individual's name from the responsible individuals list.
- A party may appeal the district court's decision under G.S. 7A-27(b)(2).
History
(2005-399, s. 3; 2010-90, s. 7; 2013-129, s. 5; 2015-247, s. 7; 2019-33, s. 4.)
Editor's Note. - Session Laws 2005-399, s. 3, enacted this section as G.S. 7B-315. It has been renumbered as this section at the direction of the Revisor of Statutes.
Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 5, which added subsection (a1) and substituted "45" for "15" in the second sentence of subsection (b), applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 7, effective July 11, 2010, rewrote the section catchline, and rewrote the section.
Session Laws 2013-129, s. 5, effective October 1, 2013, added subsection (a1); and substituted "45" for "15" in the second sentence of subsection (b). For applicability, see editor's note.
Session Laws 2015-247, s. 7, effective September 23, 2015, substituted "G.S. 7A-27(b)(2)" for "G.S. 7A-27(c)" at the end of subsection (f).
Session Laws 2019-33, s. 4, effective October 1, 2019, in subsection (b), inserted "and law enforcement investigating the same allegations" in the fourth sentence, and "including, but not limited to, child medical evaluation reports and child and family evaluation reports that the director relied on to make the determination that abuse or serious neglect occurred" in the last sentence; and made a related change.
CASE NOTES
Constitutionality. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing
an individual's name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I,
§
19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible
Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).
Jurisdiction. - Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old
at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate
was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Cited in In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015); Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462 (2017).
§ 7B-324. Persons ineligible to petition for judicial review.
-
An individual who has been identified by a director as a responsible individual is not eligible for judicial review if any of the following apply:
- The individual is criminally convicted as a result of the same incident. The district attorney shall inform the director of the result of the criminal proceeding.
- Repealed by Session Laws 2013-129, s. 6, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
- Repealed by Session Laws 2010-90, s. 8, effective July 11, 2010.
- After proper notice, the individual fails to file a petition for judicial review with the district court in a timely manner.
- Repealed by Session Laws 2010-90, s. 8, effective July 11, 2010.
- If the individual is criminally convicted as a result of the same incident after the petition for judicial review is filed, the court shall dismiss the petition for judicial review with prejudice.
- If an individual seeking judicial review is named as a respondent in a juvenile court case or a defendant in a criminal court case resulting from the same incident, the district court judge may stay the judicial review proceeding.
History
(2005-399, s. 3; 2010-90, s. 8; 2013-129, s. 6; 2019-33, s. 5.)
Editor's Note. - Session Laws 2005-399, s. 3, enacted this section as G.S. 7B-316. It has been renumbered as this section at the direction of the Revisor of Statutes.
Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 6, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 8, effective July 11, 2010, rewrote the section catchline, and rewrote the section.
Session Laws 2013-129, s. 6, effective October 1, 2013, deleted "stay of judicial review proceeding pending juvenile court case" in the section heading; deleted subdivision (a)(2); and, in subsection (b), inserted "or a defendant in a criminal court case," deleted "or consolidate the proceeding with the juvenile court case" following "may stay the judicial review proceeding," and deleted the last two sentences. For applicability, see editor's note.
Session Laws 2019-33, s. 5, effective October 1, 2019, substituted "is not eligible" for "may not petition" in subsection (a); and added subsection (a1).
CASE NOTES
Applied in In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).
§§ 7B-325 through 7B-399: Reserved for future codification purposes.
ARTICLE 4. Venue; Petitions.
Sec.
§ 7B-400. Venue.
- A proceeding in which a juvenile is alleged to be abused, neglected, or dependent may be commenced in the judicial district in which the juvenile resides or is present at the time the petition is filed. If a regional social services department includes counties in more than one judicial district, the department shall file in the judicial district where the child resides or was present when the report required by G.S. 7B-301 was received. Notwithstanding G.S. 153A-257, the absence of a juvenile from the juvenile's home pursuant to a protection plan during an assessment or the provision of case management services by a department of social services shall not change the original venue if it subsequently becomes necessary to file a juvenile petition.
- When the director in one county conducts an assessment pursuant to G.S. 7B-302 in another county because a conflict of interest exists, the director in the county conducting the assessment may file a resulting petition in either county.
- For good cause, the court may grant motion for change of venue before adjudication. A pre-adjudication change of venue shall not affect the identity of the petitioner.
- Any change of venue after adjudication shall be pursuant to G.S. 7B-900.1.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2009-311, s. 2; 2013-129, s. 7; 2017-41, s. 4.4.)
Cross References. - As to post-adjudication venue, see G.S. 7B-900.1.
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 7, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2009-311, s. 2, effective October 1, 2009, deleted "pleading" from the section heading, and deleted the former last sentence, which read: "When a proceeding is commenced in a district other than that of the juvenile's residence, the court, on its own motion or upon motion of any party, may transfer the proceeding to the court in the district where the juvenile resides. A transfer under this section may be made at any time."
Session Laws 2013-129, s. 7, effective October 1, 2013, redesignated the formerly undesignated provisions of this section as present subsection (a) and added the second sentence in subsection (a); and added subsections (b) through (d). For applicability, see editor's note.
Session Laws 2017-41, s. 4.4, effective March 1, 2019, in subsection (a), in the first sentence, inserted "at the time the petition is filed" at the end, added the second sentence, and made a related change.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Standing. - County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director
of social services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).
Court Not Limited To Only Circumstances Occurring Within Its District. - District court, in adjudicating a child neglected, was not limited to considering only those circumstances occurring within its district. To hold otherwise would have allowed abusive
and neglectful parents to avoid court intervention by simply moving from county to county. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
Cited in In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004); In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re A.K., 360 N.C. 449,
628 S.E.2d 753 (2006); In re M.B., 179 N.C. App. 572, 635 S.E.2d 8 (2006).
§ 7B-401. Pleading and process.
- The pleading in an abuse, neglect, or dependency action is the petition. The process in an abuse, neglect, or dependency action is the summons.
- If the court has retained jurisdiction over a juvenile whose custody was granted to a parent and there are no periodic judicial reviews of the placement, the provisions of Article 8 of this subchapter shall apply to any subsequent report of abuse, neglect, or dependency determined by the director of social services to require court action pursuant to G.S. 7B-302.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2013-129, s. 8.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 8, which redesignated the formerly undesignated provisions of this section as present subsection (a) and added subsection (b), applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2013-129, s. 8, effective October 1, 2013, redesignated the formerly undesignated provisions of this section as present subsection (a); and added subsection (b). For applicability, see editor's note.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Jurisdiction. - The issuance and service of process is the means by which the court obtains jurisdiction; thus, where no summons was issued, the court acquired jurisdiction over neither the persons nor the subject matter of the action, and was without authority to enter order adjudging a juvenile as neglected. In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997).
When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).
Trial court lacked subject matter jurisdiction after periodic judicial reviews were discontinued to adjudicate juveniles as abused, neglected, or dependent when a director of social services (DSS) sought court action based on a new report of abuse, neglect,
or dependency without the prior filing of a verified petition by the DSS. Moreover, the trial court could not proceed directly to a dispositional hearing without first conducting an adjudicatory hearing and actually adjudicating
the juveniles as abused, neglected, or dependent. In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
Commencement of Proceedings. - Pursuant to G.S. 7B-401 and G.S. 7B-405, a juvenile abuse,
neglect, or dependency action is a creature of statute and "is commenced by the filing of a petition," which constitutes the initial pleading in such actions. In re A.R.G., 361 N.C. 392, 646 S.E.2d
349 (2007).
Cited in In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007); In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017).
§ 7B-401.1. Parties.
- Petitioner. - Only a county director of social services or the director's authorized representative may file a petition alleging that a juvenile is abused, neglected, or dependent. The petitioner shall remain a party until the court terminates its jurisdiction in the case.
-
Parents. - The juvenile's parent shall be a party unless one of the following applies:
- The parent's rights have been terminated.
- The parent has relinquished the juvenile for adoption, unless the court orders that the parent be made a party.
- The parent has been convicted under G.S. 14-27.21, 14-27.22, 14-27.23, or 14-27.24 for an offense that resulted in the conception of the juvenile.
- Guardian. - A person who is the child's court-appointed guardian of the person or general guardian when the petition is filed shall be a party. A person appointed as the child's guardian pursuant to G.S. 7B-600 shall automatically become a party but only if the court has found that the guardianship is the permanent plan for the juvenile.
- Custodian. - A person who is the juvenile's custodian, as defined in G.S. 7B-101(8), when the petition is filed shall be a party. A person to whom custody of the juvenile is awarded in the juvenile proceeding shall automatically become a party but only if the court has found that the custody arrangement is the permanent plan for the juvenile.
- Caretaker. - A caretaker shall be a party only if (i) the petition includes allegations relating to the caretaker, (ii) the caretaker has assumed the status and obligation of a parent, or (iii) the court orders that the caretaker be made a party.
- Foster Parent. - A foster parent as defined in G.S. 131D-10.2(9a) providing foster care for the juvenile is not a party to the case and may be allowed to intervene only if the foster parent has authority to file a petition to terminate the parental rights of the juvenile's parents pursuant to G.S. 7B-1103.
- The Juvenile. - The juvenile shall be a party.
- Removal of a Party. - If a guardian, custodian, or caretaker is a party, the court may discharge that person from the proceeding, making the person no longer a party, if the court finds that the person does not have legal rights that may be affected by the action and that the person's continuation as a party is not necessary to meet the juvenile's needs.
- Intervention. - Except as provided in G.S. 7B-1103(b) and subsection (e1) of this section, the court shall not allow intervention by a person who is not the juvenile's parent, guardian, or custodian, but may allow intervention by another county department of social services that has an interest in the proceeding. This section shall not prohibit the court from consolidating a juvenile proceeding with a civil action or claim for custody pursuant to G.S. 7B-200.
- Young Adult in Foster Care. - In proceedings held pursuant to G.S. 7B-910.1, the young adult in foster care and the director of the department of social services are parties.
History
(2013-129, s. 9; 2015-136, s. 2; 2015-181, s. 22; 2015-241, s. 12C.9(h); 2015-264, s. 33(a); 2016-94, s. 12C.1(f).)
Editor's Note. - Session Laws 2015-136, s. 18, made the amendment to this section by Session Laws 2015-136, s. 2, which added subsection (e1), and substituted "G.S. 7B-1103(b) and subsection (e1) of this section" for "G.S. 7B-1103(b)" in subsection (h), applicable to actions filed or pending on or after October 1, 2015.
Session Laws 2015-181, s. 48 provides: "This act becomes effective December 1, 2015, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions." Session Laws 2015-181, s. 22, had substituted "G.S. 14-27.21, G.S. 14-27.22, or G.S. 14-27.24" for "G.S. 14-27.2 or G.S. 14-27.3" in subdivision (b)(3).
Session Laws 2015-264, s. 33(d) made the amendment to this section by Session Laws 2015-264, s. 33(a), which substituted "G.S. 14-27.21, 14-27.22, 14-27.23, or 14-27.24" for "G.S. 14-27.21, G.S. 14-27.22, or G.S. 14-27.24" in subdivision (b)(3), effective December 1, 2015, and applicable to petitions filed on or after that date.
Session Laws 2015-264, s. 91.7 contains a severability clause.
Effect of Amendments. - Session Laws 2015-136, s. 2, effective October 1, 2015, added subsection (e1); and substituted "G.S. 7B-1103(b) and subsection (e1) of this section" for "G.S. 7B-1103(b)" in subsection (h). For applicability, see editor's note.
Session Laws 2015-181, s. 22, effective December 1, 2015, and applicable to offenses committed on or after that date, substituted "G.S. 14-27.21, G.S. 14-27.22, or G.S. 14-27.24" for "G.S. 14-27.2 or G.S. 14-27.3" in subdivision (b)(3).
Session Laws 2015-241, s. 12C.9(h), effective January 1, 2017, added subsection (i).
Session Laws 2015-264, s. 33(a), effective December 1, 2015, substituted "G.S. 14-27.21, 14-27.22, 14-27.23, or 14-27.24" for "G.S. 14-27.21, G.S. 14-27.22, or G.S. 14-27.24" in subdivision (b)(3). For applicability, see Editor's note.
Session Laws 2016-94, s. 12C.1(f), effective July 1, 2016, deleted "or caretaker" preceding "but may allow intervention" and made a related change in subsection (h).
Legal Periodicals. - For article, "In Re R.R.N.: Redefining 'Caretaker' for North Carolina Child Protective Services," see 40 Campbell L. Rev. 265 (2018).
CASE NOTES
Because the language of subsection (a) identifies "a county director of social services" as the proper petitioner in a juvenile adjudication action rather than "the director" or similar language singling out particular directors, the legislature did not
intend to limit the class of parties who may invoke the court's subject matter jurisdiction in juvenile adjudication actions to only directors of county departments of social services in the county where the juvenile at issue resides
or is found. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).
Standing. - County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director of social services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).
General Assembly's use of the indefinite article, "a" before "county director of social services" belies the notion that the provision limits standing to any one county director of social services. In re A.P., 371 N.C. 14,
812 S.E.2d 840 (2018).
Testimony Properly Considered. - Because the trial court was statutorily required to hear testimony from the foster parents and any person who would aid in its review, its decision to permit the foster parents and their counsel to participate in the permanency planning proceedings was not manifestly unsupported by reason; the trial court did not allow the foster parents to intervene as parties but permitted their counsel to facilitate their testimony on direct examination, which was information it was required to hear. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).
Required Findings Not Made. - Trial court erred by, in effect, removing custodial grandparents from a juvenile proceeding because (1) the grandparents were mandatory parties to the proceeding, and the court did not enter the findings statutorily required
when discharging a party from a proceeding. In re J.R.S., 258 N.C. App. 612, 813 S.E.2d 283 (2018).
Cited in In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).
Applied in In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).
§ 7B-402. Petition.
- The petition shall contain the name, date of birth, address of the juvenile, the name and last known address of each party as determined by G.S. 7B-401.1, and allegations of facts sufficient to invoke jurisdiction over the juvenile. The petition may contain information on more than one juvenile when the juveniles are from the same home and are before the court for the same reason.
- The petition, or an affidavit attached to the petition, shall contain the information required by G.S. 50A-209.
- Sufficient copies of the petition shall be prepared so that copies will be available for each party named in the petition, except the juvenile, and for the juvenile's guardian ad litem, the social worker, and any person determined by the court to be a necessary party.
- If the petition is filed in a county other than the county of the juvenile's residence, the petitioner shall provide a copy of the petition and any notices of hearing to the director of the department of social services in the county of the juvenile's residence.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 9; 1998-202, s. 6; 1999-456, s. 60; 2004-128, s. 11; 2005-320, s. 3; 2009-311, s. 3; 2010-90, s. 9; 2013-129, s. 10.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 10, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2009-311, s. 3, effective October 1, 2009, added subsection (d).
Session Laws 2010-90, s. 9, effective July 11, 2010, added the second sentence in subsection (a).
Session Laws 2013-129, s. 10, effective October 1, 2013, in subsection (a), substituted "each party as determined by G.S. 7B-401.1" for "the juvenile's parent,
guardian, or custodian" in the first sentence, and deleted the second sentence; and substituted "party named in the petition, except the juvenile, and for the juvenile's" for "parent if living separate and apart, the guardian, custodian,
or caretaker, the" in subsection (c). For applicability, see editor's note.
CASE NOTES
Proper Allegation of First Degree Murder. - Petition alleging that "juvenile was delinquent as defined by former G.S. 7A-517(12) (see now G.S. 7B-1501) in that
in Durham County and on or about December 30, 1997, the above named juvenile unlawfully, willfully and feloniously did of malice aforethought kill and murder victim" properly alleged first degree murder under G.S. 14-17,
satisfied former G.S. 7A-560 (see now this section requirements of), and made transfer of case to Superior Court mandatory under former G.S.7A-608 (see now G.S. 7B-2200).
In re K.R.B., 134 N.C. App. 328, 517 S.E.2d 200 (1999), cert. denied, 351 N.C. 188, 541 S.E.2d 713 (1999).
Failure to List Juvenile's Address. - In dependency proceedings brought under G.S. 7B-101, the failure of a petition to list an allegedly dependent juvenile's
address pursuant to G.S. 7B-402 did not deprive the trial court of jurisdiction because this was "routine clerical information," and the trial court could easily
determine from information provided in the petition whether the court had subject matter jurisdiction over the case. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).
Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
Cited in In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).
§ 7B-403. Receipt of reports; filing of petition.
- All reports concerning a juvenile alleged to be abused, neglected, or dependent shall be referred to the director of the department of social services for screening. Thereafter, if it is determined by the director that a report should be filed as a petition, the petition shall be drawn by the director, verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing.
- A decision of the director of social services not to file a report as a petition shall be reviewed by the prosecutor if review is requested pursuant to G.S. 7B-305.
History
(1979, c. 815, s. 1; 1981, c. 469, ss. 10, 11; 1998-202, s. 6; 1999-456, s. 60.)
Legal Periodicals. - For 1984 survey, "Termination of Parental Rights: Putting Love in Its Place," see 63 N.C.L. Rev. 1177 (1985).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
The primary purpose to be served by signature and verification is to obtain the written and sworn statement of the facts alleged in an official and authoritative form that may be used for any lawful purpose, either in or out of a court of law. In re Green,
67 N.C. App. 501, 313 S.E.2d 193 (1984).
The Juvenile Code requirements that the juvenile delinquency petition be signed and verified are essential to both the validity of the petition and to establishing the jurisdiction of the court. In re Green, 67 N.C. App. 501, 313 S.E.2d 193 (1984).
Verification of Petition. - Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).
Trial court lacked jurisdiction to enter a review order in a neglect action because the juvenile petition that initiated the case was not verified as mandated by G.S. 7B-403(a); the trial court could not exercise subject matter jurisdiction in the absence of the verification, and thus the trial court's order was void ab initio. In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).
Petitions for nonsecure custody filed by DSS did not comply with G.S. 7B-403, DSS was not an agency awarded custody of the minor children by a court of competent jurisdiction, DSS did not have standing under G.S. 7B-1103(a)(3) to file the termination of parental rights petitions, and the trial court did not have subject matter jurisdiction to enter the termination orders as: (1) the petition for adjudication with respect to child one contained a "Signature of Petitioner" as the "Director of DSS by an employee" and did not contain the signature of the director under G.S. 10B-3(25); (2) DSS filed an amended petition regarding child two with no signature in the "Signature of Petitioner" space; and (3) the orders awarding DSS custody were void ab initio. In re S.E.P., 184 N.C. App. 481, 646 S.E.2d 617 (2007).
Trial court had subject matter jurisdiction over the juvenile petition filed by the caseworker even though the caseworker did not sign it and, thus, the trial court could enter its termination of parental rights order regarding the father; while the caseworker did not specifically state in the petition that the caseworker was an authorized representative of the director of the Department of Social Services, the caseworker's verification of the petition was sufficient for the trial court to exercise jurisdiction over the case. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).
Failure to verify a juvenile petition as required under G.S. 7B-403 deprives the trial court of subject matter jurisdiction, and there is no meaningful basis for distinguishing between a juvenile petition and a Hague Convention on the Civil Aspects of International Child Abduction petition when it comes to the verification requirement; because of the mandatory nature of the remedy under the Hague Convention, which entails removing a child from a parent and returning the child to another country, the interests at stake have the same magnitude and the potential consequences of any error would be just as devastating as with a juvenile petition, and the failure to verify a petition filed pursuant to the Hague Convention deprives the trial court of subject matter jurisdiction over that petition. Obo v. Steven B., 201 N.C. App. 532, 687 S.E.2d 496 (2009).
Juvenile petition contained a verification that appeared facially valid, as it was signed by an authorized representative of the director of the human services department, but the signature was illegible, and the space reserved for that person's title was blank; respondent had the burden of showing that the petition was not verified before a person authorized to administer oaths, and considering the presumption of regularity that attached to the trial court's decision to exercise jurisdiction, the appellate court had no basis to conclude that the petition was not properly verified. In re N.T., 368 N.C. 705, 782 S.E.2d 502 (2016).
Representative of a local department of social services, which was acting as a state agent, was acquainted with the facts of a termination of parental rights case. Therefore, the representative's verification of the petitions alleging neglect and dependency
was effective to grant jurisdiction to the trial court. In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).
Signature by District Attorney. - As long as juvenile intake counselor follows the statutory procedures before the signing of the petition, and the assistant district attorney does not encroach upon the important role of the intake counselor, the assistant
district attorney may sign the petition as complainant. In re Stowe, 118 N.C. App. 662, 456 S.E.2d 336 (1995).
Cited in In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007); In re L.B., 184 N.C. App. 442,
646 S.E.2d 411 (2007).
§ 7B-404. Immediate need for petition when clerk's office is closed.
-
When the office of the clerk is closed, a magistrate shall accept for filing the following:
- A petition alleging a juvenile to be abused, neglected, or dependent.
- A petition alleging the obstruction of or interference with an assessment required by G.S. 7B-302.
- The authority of the magistrate under this section is limited to emergency situations when a petition must be filed to obtain a nonsecure custody order or an order under G.S. 7B-303. Any petition accepted for filing under this section shall be delivered to the clerk's office for processing as soon as that office is open for business.
History
(1979, c. 815, s. 1; 1987, c. 409, s. 3; 1998-202, s. 6; 1999-456, s. 60; 2005-55, s. 10; 2017-161, s. 2.)
Effect of Amendments. - Session Laws 2017-161, s. 2, effective October 1, 2017, substituted "shall accept for filing the following:" for "may be authorized by the chief district court judge to draw, verify, and issue petitions as follows:" in subsection (a); in the beginning of subdivisions (a)(1) and (a)(2) deleted " When the director of the department of social services requests" and made related stylistic changes; and, in subsection (b), substituted "must be filed" for "is required in order" in the first sentence, and substituted "accepted for filing" for "issued" in the second sentence.
CASE NOTES
Affidavit Inadmissible on Appeal. - Department of social services' motion to amend an appellate record to include a magistrate's affidavit averring that the magistrate verified a petition was denied because, inter alia, neither the motion to amend nor
the record on appeal showed the chief district judge authorized the magistrate to verify petitions in emergency situations, which was a necessary acknowledgement for receiving verification of an emergency petition, so the appellate
court did not consider suspending the appellate rules. In re N.T., 240 N.C. App. 33, 769 S.E.2d 658 (2015).
Cited in In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675
S.E.2d 361 (2009).
§ 7B-405. Commencement of action.
An action is commenced by the filing of a petition in the clerk's office when that office is open or by the acceptance of a juvenile petition by a magistrate when the clerk's office is closed, which shall constitute filing.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2017-161, s. 3.)
Effect of Amendments. - Session Laws 2017-161, s. 3, effective October 1, 2017, substituted "acceptance" for "issuance" near the middle of the sentence and deleted "issuance" preceding "shall constitute filing" at the end.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Verification of petition. - Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court; because there was no evidence in the record suggesting later filings sufficient to invoke subject matter jurisdiction as to the lower court's subsequent order from a review hearing, the trial court erred in proceeding on the matter due to lack of subject matter jurisdiction. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).
Trial court had subject matter jurisdiction over a petition filed by the Department of Social Services, alleging that a mother's son was neglected because the petition was filed with the clerk's office, and the summons issued the same day to the mother was signed by a deputy clerk, stating that a petition had been filed and a nonsecure custody order had been entered; the lack of an official "filed" stamp on the petition did not require a conclusion, contrary to the other material in the record, that the petition was not filed with the clerk's office. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).
Trial court had subject matter jurisdiction over a petition filed by DSS, alleging that a mother's son was neglected because the petition was filed with the clerk's office, and the summons issued the same day to the mother was signed by a deputy clerk, stating that a petition had been filed and a nonsecure custody order had been entered; even if the petition was filed after the issuance of the nonsecure custody order, that fact would not deprive the district court of jurisdiction. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).
County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director of social
services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).
Verification Secures Subject Matter Jurisdiction. - In a juvenile dependency matter wherein the juvenile petition was eventually signed and verified by a Department of Social Services representative, the trial court gained subject matter jurisdiction
and could properly act on the matter from that day forward; therefore, the trial court had authority to enter a permanency planning order. In re L.B., 181 N.C. App. 174, 639
S.E.2d 23 (2007).
Commencement of Proceedings. - Pursuant to G.S. 7B-401 and G.S. 7B-405, a juvenile abuse,
neglect, or dependency action is a creature of statute and "is commenced by the filing of a petition," which constitutes the initial pleading in such actions. In re A.R.G., 361 N.C. 392, 646 S.E.2d
349 (2007).
Cited in In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 779 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d
787 (2006); In re D.R.S., 181 N.C. App. 136, 638 S.E.2d 626 (2007); In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007); In re K.J.L., 194 N.C. App. 386, 670 S.E.2d 269 (2008); In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).
§ 7B-406. Issuance of summons.
- Immediately after a petition has been filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall issue a summons to each party named in the petition, except the juvenile, requiring them to appear for a hearing at the time and place stated in the summons. A copy of the petition shall be attached to each summons. Service of the summons shall be completed as provided in G.S. 7B-407, but the parent of the juvenile shall not be deemed to be under a disability even though the parent is a minor.
-
A summons shall be on a printed form supplied by the Administrative Office of the Courts and shall include each of the following:
- Notice of the nature of the proceeding.
- Notice of any right to counsel and information about how a parent may seek the appointment of counsel prior to a hearing if provisional counsel is not identified.
- Repealed by Session Laws 2013-129, s. 11, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
- Notice that, if the court determines at the hearing that the allegations of the petition are true, the court will conduct a dispositional hearing to consider the needs of the juvenile and enter an order designed to meet those needs and the objectives of the State.
-
Notice that the dispositional order or a subsequent order:
- May remove the juvenile from the custody of the parent, guardian, or custodian.
- May require that the juvenile receive medical, psychiatric, psychological, or other treatment and that the parent participate in the treatment.
- May require the parent to undergo psychiatric, psychological, or other treatment or counseling for the purpose of remedying the behaviors or conditions that are alleged in the petition or that contributed to the removal of the juvenile from the custody of that person.
- May order the parent to pay for treatment that is ordered for the juvenile or the parent.
- May, upon proper notice and hearing and a finding based on the criteria set out in G.S. 7B-1111, terminate the parental rights of the respondent parent.
- The summons shall advise the parent that upon service, jurisdiction over that person is obtained and that failure to comply with any order of the court pursuant to G.S. 7B-904 may cause the court to issue a show cause order for contempt.
- A summons shall be directed to the person summoned to appear and shall be delivered to any person authorized to serve process.
History
(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 2; 1995, c. 328, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2000-183, s. 1; 2001-208, s. 1; 2001-487, s. 101; 2004-128, s. 12; 2010-90, s. 10; 2013-129, s. 11.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 11, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 10, effective July 11, 2010, in the introductory language of subsection (b), added "each of the following"; made minor stylistic changes in subdivisions (b)(1) through (b)(3); and added subdivision (b)(2a).
Session Laws 2013-129, s. 11, effective October 1, 2013, in subsection (a), substituted "party named in the petition, except the juvenile" for "the parent, guardian, custodian, or caretaker" in the first sentence, and deleted the second sentence; in subdivision (b)(2), substituted, "a parent may seek the appointment of counsel prior to a hearing if provisional counsel is not identified" for "to seek the appointment of counsel prior to a hearing"; and deleted subdivision (b)(2a). For applicability, see editor's note.
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Jurisdiction. - The issuance and service of process is the means by which the court obtains jurisdiction; thus, where no summons was issued, the court acquired jurisdiction over neither the persons nor the subject matter of the action, and was without authority to enter order adjudging a juvenile as neglected. In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997).
Juvenile petition was filed June 11, 2004, and the summons was issued four days later, but the summons was returned by the sheriff on June 30, 2004, unserved; on July 8, 2004, the mother attended a hearing regarding the allegations her minor child was neglected and dependent. The mother was not only present in court, but also agreed to continue the matter until July 22, 2004, and there was no evidence that the mother raised any objection at that hearing regarding insufficient service of process or personal jurisdiction; thus, her actions amounted to waiver of her right to challenge the trial court's exercise of personal jurisdiction over her regardless of whether she was served with a juvenile summons in compliance with G.S. 1A-1-4. In re A.J.M., 177 N.C. App. 745, 630 S.E.2d 33 (2006).
Failure to serve the children with a petition alleging abuse and neglect could not be basis for lack of subject matter jurisdiction because only a parent, guardian, or caretaker was required to be served. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).
Although a summons in a juvenile neglect proceeding was not properly signed pursuant to G.S. 7B-406 and 1A-1, N.C. R. Civ. P. 4(b), only personal jurisdiction,
rather than subject matter jurisdiction, was implicated, and where the parents appeared in the neglect proceeding and they failed to object thereto, such defense was waived; a termination of parental rights in reliance on the neglect
order was valid. In re K.J.L., 363 N.C. 343, 677 S.E.2d 835 (June 18, 2009).
Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015).
§ 7B-407. Service of summons.
The summons shall be served under G.S. 1A-1, Rule 4, upon the parent, guardian, custodian, or caretaker, not less than five days prior to the date of the scheduled hearing. The time for service may be waived in the discretion of the court.
If service by publication under G.S. 1A-1, Rule 4(j1), or service in a foreign country under Rule 4(j3), is required, the cost of the service
by publication shall be advanced by the petitioner and may be charged as court costs as the court may direct.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2003-304, s. 1; 2013-129, s. 12; 2017-161, s. 4.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 12, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2013-129, s. 12, effective October 1, 2013, in the second paragraph, substituted "If service by publication under G.S. 1A-1, Rule 4(j1) is required, the cost" for "If the parent, guardian, custodian, or caretaker entitled to receive a summons cannot be found by a diligent effort, the court may authorize service of the summons and petition by publication under G.S. 1A-1, Rule 4(j1). The cost," and deleted the third paragraph. For applicability, see editor's note.
Session Laws 2017-161, s. 4, effective October 1, 2017, substituted "Rule 4" for "Rule 4(j) in the first paragraph, added "or service in a foreign country under Rule 4(j3)" in the second paragraph and made related stylistic changes.
Legal Periodicals. - For comment on due process in juvenile proceedings, see 3 N.C. Cent. L.J. 255 (1972).
For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Trial Court Is Without Jurisdiction Where No Notice Was Served. - A trial court did not have jurisdiction to enter orders in a juvenile delinquency proceeding where no summons, petition or other notice was ever served on the juvenile or her parents, guardian
or custodian prior to any of the hearings. In re McAllister, 14 N.C. App. 614, 188 S.E.2d 723 (1972).
Statement on return that service was accomplished implies that it was done in the manner required by law. In re Leggett, 67 N.C. App. 745, 314 S.E.2d 144 (1984).
It is the service of summons, rather than the return of the officer, that confers jurisdiction. In re Leggett, 67 N.C. App. 745, 314 S.E.2d 144 (1984); In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).
Failure of Record to Show Time and Manner of Service. - Failure of a record of a juvenile delinquency proceeding to show the exact time and manner of service of the summons and petition upon the juvenile and his parents was not fatal where the record
affirmatively showed that the juvenile and his mother were in fact accorded sufficient notice of the hearing at which he was adjudicated delinquent to provide adequate opportunity to prepare, that at least seven days prior to the
hearing he had been represented by privately employed counsel, and that he was represented by such counsel at the hearing, which had already been once continued. In re Collins, 12 N.C. App. 142, 182 S.E.2d 662 (1971).
Service by Publication. - Notice to the father by publication of a neglect proceeding against his daughter was proper since the agency's affidavit stated that the father could not be found by a diligent effort because he was a transient person with no
permanent residence. In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002).
Service on Only One Parent Required. - In order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them or the guardian or custodian. In re Yow, 40 N.C. App. 688, 253 S.E.2d 647, cert. denied, 297 N.C. 610, 257 S.E.2d 223 (1979).
In order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).
U.S. Const., Amend. XIV did not proscribe a finding of dependency binding upon the mother of a child so that his custody could be placed with a suitable person, where the mother was not served with any notice before the first hearing, but where the facts
showed that his father was served with notice, and it was found as a fact that the mother's address was unknown and no evidence to dispute the finding was in the record. In re Yow, 40 N.C. App. 688, 253 S.E.2d 647, cert. denied, 297 N.C. 610, 257 S.E.2d 223 (1979).
Jurisdiction Acquired by Service on One Parent. - Juvenile court, which acquired jurisdiction over the subject matter when the summons was served upon mother, although it was not served upon father as required by this section, had the authority to decide
the issue of neglect and dependency of three children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).
Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002); In re A.R., 227 N.C. App. 518, 742 S.E.2d 629 (June 4, 2013).
§ 7B-408. Copy of petition and notices to guardian ad litem.
Immediately after a petition has been filed alleging that a juvenile is abused or neglected, the clerk shall provide a copy of the petition and any notices of hearings to the local guardian ad litem office.
History
(2003-140, s. 6.)
§§ 7B-409 through 7B-413: Reserved for future codification purposes.
ARTICLE 5. Temporary Custody; Nonsecure Custody; Custody Hearings.
Sec.
§ 7B-500. Taking a juvenile into temporary custody; civil and criminal immunity.
- Temporary custody means the taking of physical custody and providing personal care and supervision until a court order for nonsecure custody can be obtained. A juvenile may be taken into temporary custody without a court order by a law enforcement officer or a department of social services worker if there are reasonable grounds to believe that the juvenile is abused, neglected, or dependent and that the juvenile would be injured or could not be taken into custody if it were first necessary to obtain a court order. If a department of social services worker takes a juvenile into temporary custody under this section, the worker may arrange for the placement, care, supervision, and transportation of the juvenile.
-
The following individuals shall, without a court order, take into temporary custody an infant under seven days of age that is voluntarily delivered to the individual by the infant's parent who does not express an intent to return for the infant:
- A health care provider, as defined under G.S. 90-21.11, who is on duty or at a hospital or at a local or district health department or at a nonprofit community health center.
- A law enforcement officer who is on duty or at a police station or sheriff's department.
- A social services worker who is on duty or at a local department of social services.
- A certified emergency medical service worker who is on duty or at a fire or emergency medical services station.
- An individual who takes an infant into temporary custody under subsection (b) of this section shall perform any act necessary to protect the physical health and well-being of the infant and shall immediately notify the department of social services or a local law enforcement agency. Any individual who takes an infant into temporary custody under subsection (b) of this section may inquire as to the parents' identities and as to any relevant medical history, but the parent is not required to provide the information. The individual shall notify the parent that the parent is not required to provide the information.
- Any adult may, without a court order, take into temporary custody an infant under seven days of age that is voluntarily delivered to the individual by the infant's parent who does not express an intent to return for the infant. Any individual who takes an infant into temporary custody under this section shall perform any act necessary to protect the physical health and well-being of the infant and shall immediately notify the department of social services or a local law enforcement agency. An individual who takes an infant into temporary custody under this subsection may inquire as to the parents' identities and as to any relevant medical history, but the parent is not required to provide the information. The individual shall notify the parent that the parent is not required to provide the information.
- An individual described in subsection (b) or (d) of this section is immune from any civil or criminal liability that might otherwise be incurred or imposed as a result of any omission or action taken pursuant to the requirements of subsection (c) or (d) of this section as long as that individual was acting in good faith. The immunity established by this subsection does not extend to gross negligence, wanton conduct, or intentional wrongdoing that would otherwise be actionable.
History
(1979, c. 815, s. 1; 1985, c. 408, s. 1; 1985 (Reg. Sess., 1986), c. 863, s. 1; 1994, Ex. Sess., c. 27, s. 2; 1995, c. 391, s. 1; 1997-443, s. 11A.118(a); 1998-202, s. 6; 1999-456, s. 60; 2001-291, s. 2.)
Cross References. - As to immunity from prosecution for child abandonment under G.S. 14-322 and 14-322.1 for parent voluntarily delivering
infant less than 7 days old as provided in this section, see G.S. 14-322.3.
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For article on the efficacy of a probable cause requirement in juvenile proceedings, see 59 N.C.L. Rev. 723 (1981).
For article on rights and interests of parent, child, family and state, see 4 Campbell L. Rev. 85 (1981).
For comment, "The Child Abuse Amendments of 1984: Congress Is Calling North Carolina to Respond to the Baby Doe Dilemma," 20 Wake Forest L. Rev. 975 (1984).
For article, "In Re R.R.N.: Redefining ‘Caretaker' for North Carolina Child Protective Services," see 40 Campbell L. Rev. 265 (2018).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's
juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody
of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).
Custody Did Not Violate Family Rights to Privacy and Integrity. - Department of Social Services employee did not act outside of the authority conferred on her by statute, or violate plaintiffs' rights to family privacy and integrity, by placing child in foster home or making telephone calls seeking information about child, after receiving reports that child was beaten by her father or otherwise abused. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).
Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay
where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).
Cited in Whittington v. Hendren (In re Hendren), 156 N.C. App. 364, 576 S.E.2d 372 (2003); In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867 (2004); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re C.J.H., 240 N.C. App. 489, 772 S.E.2d 82 (2015).
§ 7B-501. Duties of person taking juvenile into temporary custody.
-
A person who takes a juvenile into custody without a court order under G.S. 7B-500 shall proceed as follows:
- Notify the juvenile's parent, guardian, custodian, or caretaker that the juvenile has been taken into temporary custody and advise the parent, guardian, custodian, or caretaker of the right to be present with the juvenile until a determination is made as to the need for nonsecure custody. Failure to notify the parent that the juvenile is in custody shall not be grounds for release of the juvenile.
- Release the juvenile to the juvenile's parent, guardian, custodian, or caretaker if the person having the juvenile in temporary custody decides that continued custody is unnecessary.
- The person having temporary custody shall communicate with the director of the department of social services who shall consider prehearing diversion. If the decision is made to file a petition, the director shall contact the judge or person delegated authority pursuant to G.S. 7B-502 for a determination of the need for continued custody.
-
A juvenile taken into temporary custody under this Article shall not be held for more than 12 hours, or for more than 24 hours if any of the 12 hours falls on a Saturday, Sunday, or legal holiday, unless:
- A petition or motion for review has been filed by the director of the department of social services, and
- An order for nonsecure custody has been entered by the court.
History
(1979, c. 815, s. 1; 1981, c. 335, ss. 1, 2; 1994, Ex. Sess., c. 17, s. 1; c. 27, s. 3; 1995, c. 391, s. 2; 1998-202, s. 6; 1999-456, s. 60.)
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For comment, "The Child Abuse Amendments of 1984: Congress Is Calling North Carolina to Respond to the Baby Doe Dilemma," 20 Wake Forest L. Rev. 975 (1984).
§ 7B-502. Authority to issue custody orders; delegation.
-
In the case of any juvenile alleged to be within the jurisdiction of the court, the court may order that the juvenile be placed in nonsecure custody pursuant to criteria set out in G.S. 7B-503 when custody of the juvenile is necessary. The order for nonsecure
custody may be entered ex parte. Unless the petition is being filed pursuant to G.S. 7B-404, telephonic communication that the department will be seeking nonsecure custody shall be given to counsel, or if unavailable, to a partner
or employee at the attorney's office when any of the following occur:
- The department has received written notification that a respondent has counsel for the juvenile matter.
- The respondent is represented by counsel in a juvenile proceeding within the same county involving another juvenile of the respondent.
- Any district court judge shall have the authority to issue nonsecure custody orders pursuant to G.S. 7B-503. The chief district court judge may delegate the court's authority to persons other than district court judges by administrative order which shall be filed in the office of the clerk of superior court. The administrative order shall specify which persons shall be contacted for approval of a nonsecure custody order pursuant to G.S. 7B-503.
Notice is not required to provisional counsel appointed pursuant to G.S. 7B-602.
History
(1979, c. 815, s. 1; 1981, c. 425; 1983, c. 590, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2015-136, s. 3.)
Effect of Amendments. - Session Laws 2015-136, s. 3, effective July 2, 2015, inserted the (a) and (b) designations; added the second and third sentences in subsection (a), including subdivisions (a)(1) and (2).
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).
Proper order of custody existed prior to a trial court's entering its adjudication and dispositional order that a mother's son was neglected because the trial court entered an order stating that pending further hearings, the son would remain or be placed
in the non-secure custody of the county Department of Social Services (DSS); assuming, without deciding, that a magistrate lacked authority to enter a nonsecure custody order, the mother cited no authority suggesting that such
a lack of authority stripped the trial court of subject matter jurisdiction over the petition filed by DSS, alleging that her son was neglected. In re A.S., 190 N.C. App. 679,
661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).
Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay
where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).
Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007).
§ 7B-503. Criteria for nonsecure custody.
-
When a request is made for nonsecure custody, the court shall first consider release of the juvenile to the juvenile's parent, relative, guardian, custodian, or other responsible adult. An order for nonsecure custody shall be made only when there is a
reasonable factual basis to believe the matters alleged in the petition are true, and any of the following apply:
- The juvenile has been abandoned.
- The juvenile has suffered physical injury, sexual abuse, or serious emotional damage as defined by G.S. 7B-101(1)e.
- The juvenile is exposed to a substantial risk of physical injury or sexual abuse because the parent, guardian, custodian, or caretaker has created the conditions likely to cause injury or abuse or has failed to provide, or is unable to provide, adequate supervision or protection.
- The juvenile is in need of medical treatment to cure, alleviate, or prevent suffering serious physical harm which may result in death, disfigurement, or substantial impairment of bodily functions, and the juvenile's parent, guardian, custodian, or caretaker is unwilling or unable to provide or consent to the medical treatment.
- The parent, guardian, custodian, or caretaker consents to the nonsecure custody order.
- The juvenile is a runaway and consents to nonsecure custody.
- Whenever a petition is filed under G.S. 7B-302(d1), the court shall rule on the petition prior to returning the child to a home where the alleged abuser or abusers are or have been present. If the court finds that the alleged abuser or abusers have a history of violent behavior against people, the court shall order the alleged abuser or abusers to submit to a complete mental health evaluation by a licensed psychologist or psychiatrist. The court may order the alleged abuser or abusers to pay the cost of any mental health evaluation required under this section.
A juvenile alleged to be abused, neglected, or dependent shall be placed in nonsecure custody only when there is a reasonable factual basis to believe that there are no other reasonable means available to protect the juvenile. In no case shall a juvenile alleged to be abused, neglected, or dependent be placed in secure custody.
History
(1979, c. 815, s. 1; 1981, c. 426, ss. 1-4; c. 526; 1983, c. 590, ss. 2-6; 1987, c. 101; 1987 (Reg. Sess., 1988), c. 1090, s. 3; 1989, c. 550; 1998-202, s. 6; 1999-318, s. 4; 1999-456, s. 60; 2011-295, s. 2; 2019-33, s. 6.)
Effect of Amendments. - Session Laws 2011-295, s. 2, effective October 1, 2011, and applicable to actions filed or pending on or after that date, in the introductory paragraph of subsection (a), added "any of the following apply"; and in subdivisions (a)(1) through (a)(5), made a minor stylistic change.
Session Laws 2019-33, s. 6, effective October 1, 2019, rewrote subdivision (a)(2), which formerly read: "The juvenile has suffered physical injury or sexual abuse."
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For article on rights and interest of parent, child, family and state, see 4 Campbell L. Rev. 85 (1981).
For article, "Coercive Governmental Intervention and the Family: A Comment on North Carolina's Proposed Standards," see 7 Campbell L. Rev. 145 (1984).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Jurisdiction Required. - Subdivision (d) of this section requires that the trial court have jurisdiction before exercising the powers granted thereunder. In re Transp. of Juveniles, 102 N.C. App. 806, 403 S.E.2d 557 (1991).
Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile
investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the
children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).
Standard of Proof for Termination and Removal Distinguished. - There is a substantive difference between the quantum of adequate proof of neglect and dependency for purposes of termination and for purposes of removal. The most significant difference is
that while parental rights may not be terminated for threatened future harm, the Department of Social Services may obtain temporary custody of a child when there is a risk of neglect in the future. In re Evans,
81 N.C. App. 449, 344 S.E.2d 325 (1986).
The task at the temporary custody or removal stage is to determine whether the child is exposed to a substantial risk of physical injury because the parent is unable to provide adequate protection. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).
Findings of Fact Required. - Trial court erred in concluding that child was dependent there were no findings of fact concerning the mother's ability to provide care or supervision for the child or that the mother lacked an alternative child care arrangement
to support the court's conclusion that the child was dependent. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).
When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503,
the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under
G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405,
and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).
Removal of Child Upheld. - Evidence held sufficient to show that seven-year old child was exposed to a substantial risk of physical injury because of her mother's inability to maintain secure living arrangements for her, so as to permit the Department
of Social Services to remove her from her mother's custody until such accommodations could be provided. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).
Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).
§ 7B-504. Order for nonsecure custody.
The custody order shall be in writing and shall direct a law enforcement officer or other authorized person to take physical custody of the juvenile and to make due return on the order. A copy of the order shall be given to the juvenile's parent, guardian, custodian, or caretaker by the official executing the order.
An officer receiving an order for custody which is complete and regular on its face may execute it in accordance with its terms. If the court finds on the basis of the petition and request for nonsecure custody or the testimony of the petitioner that a less intrusive remedy is not available, the court may authorize a law enforcement officer to enter private property to take physical custody of the juvenile. If required by exigent circumstances of the case, the court may authorize a law enforcement officer to make a forcible entry at any hour. The officer is not required to inquire into the regularity or continued validity of the order and shall not incur criminal or civil liability for its due service.
History
(1979, c. 815, s. 1; 1989, c. 124; 1998-202, s. 6; 1999-456, s. 60; 2015-43, s. 1.)
Editor's Note. - Session Laws 2015-43, s. 2, made the amendment to this section by Session Laws 2015-43, s. 1, which substituted "take physical" for "assume" in the first sentence of the first paragraph, and inserted the second and third sentences in the second paragraph, applicable to orders issued on or after June 2, 2015.
Effect of Amendments. - Session Laws 2015-43, s. 1, effective June 2, 2015, substituted "take physical" for "assume" in the first sentence of the first paragraph; and inserted the second and third sentences in the second paragraph. For applicability, see editor's note.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Order sufficient despite form not being completely filled out. - When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure
custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's
parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the
court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent
juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the
failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).
Cited in In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).
§ 7B-505. Placement while in nonsecure custody.
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A juvenile meeting the criteria set out in G.S. 7B-503 may be placed in nonsecure custody with the department of social services or a person designated in the order for temporary residential placement in any of the following:
- A licensed foster home or a home otherwise authorized by law to provide such care.
- A facility operated by the department of social services.
- Any other home or facility, including the home of a parent, relative, nonrelative kin, or other person with legal custody of a sibling of the juvenile, approved by the court and designated in the order.
- The court shall order the department of social services to make diligent efforts to notify relatives and other persons with legal custody of a sibling of the juvenile that the juvenile is in nonsecure custody and of any hearings scheduled to occur pursuant to G.S. 7B 506, unless the court finds the notification would be contrary to the best interests of the juvenile. In placing a juvenile in nonsecure custody under this section, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that placement with the relative would be contrary to the best interests of the juvenile.
- If the court does not place the juvenile with a relative, the court may consider whether nonrelative kin or other persons with legal custody of a sibling of the juvenile are willing and able to provide proper care and supervision of the juvenile in a safe home. The court may order the department to notify the juvenile's State-recognized tribe of the need for nonsecure custody for the purpose of locating relatives or nonrelative kin for placement. The court may order placement of the juvenile with nonrelative kin if the court finds the placement is in the juvenile's best interests.
- In placing a juvenile in nonsecure custody under this section, the court shall also consider whether it is in the juvenile's best interest to remain in the juvenile's community of residence. In placing a juvenile in nonsecure custody under this section, the court shall consider the Indian Child Welfare Act, Pub. L. No. 95-608, 25 U.S.C. §§ 1901, et seq., as amended, and the Howard M. Metzenbaum Multiethnic Placement Act of 1994, Pub. L. No. 103-382, 108 Stat. 4056, as amended, as they may apply. Placement of a juvenile with a relative outside of this State must be in accordance with the Interstate Compact on the Placement of Children, Article 38 of this Chapter.
History
(1979, c. 815, s. 1; 1983, c. 639, ss. 1, 2; 1997-390, s. 4; 1997-443, s. 11A.118(a); 1998-202, s. 6; 1998-229, ss. 3, 20; 1999-456, s. 60; 2002-164, s. 4.7; 2013-129, s. 13; 2015-135, s. 2.2; 2015-136, s. 4; 2017-161, s. 5.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 13, applicable to actions filed or pending on or after October 1, 2013.
Session Laws 2015-135, s. 1.1, provides: "This act shall be known and may be cited as the 'Foster Care Family Act.' "
Session Laws 2015-135, s. 2.2 and Session Laws 2015-136, s. 4, both added sentences to the beginning of subsection (b). At the direction of the Revisor of Statutes, the sentence as added by Session Laws 2015-135, s. 2.2, has been set out as the first sentence and the sentence as added by Session Laws 2015-136, s. 4, has been set out as the second sentence.
Session Laws 2015-136, s. 18, made the amendment to this section by Session Laws 2015-136, s. 4, applicable to actions filed or pending on or after October 1, 2015.
Effect of Amendments. - Session Laws 2013-129, s. 13, effective October 1, 2013, substituted "Placement while in" for "Place of" in the section heading; redesignated the formerly undesignated first, second and third paragraphs of this section as present subsections (a), (b), and (d); and added subsection (c). For applicability, see editor's note.
Session Laws 2015-135, s. 2.2, effective October 1, 2015, inserted the first sentence in subsection (b).
Session Laws 2015-136, s. 4, effective October 1, 2015, added the first sentence [now the second sentence] in subsection (b); in subsection (c), inserted "or other persons with legal custody of a sibling of the juvenile" in the first sentence and deleted the former second and third sentences, which read "Nonrelative kin is an individual having a substantial relationship with the juvenile. In the case of a juvenile member of a State-recognized tribe as set forth in G.S. 143B-407(a), nonrelative kin also includes any member of a State-recognized tribe or a member of a federally recognized tribe, whether or not there is a substantial relationship with the juvenile."; and made minor stylistic changes. For applicability, see editor's note.
Session Laws 2017-161, s. 5, effective October 1, 2017, substituted "in any of the following" for "in" in subsection (a); substituted "the home of a parent, relative, nonrelative kin, or other person with legal custody of a sibling of the juvenile" for "a relatives home" in subdivision (a)(3); made minor stylistic and punctuation changes throughout the subsection; in subsection (b), deleted the former first sentence, which read: "The court shall order the department of social services to make diligent efforts to notify relatives and any custodial parents of the juvenile's siblings that the juvenile is in nonsecure custody and of any hearings scheduled to occur pursuant to G.S. 7B 506, unless the court finds such notification would be contrary to the best interests of the juvenile.", and inserted "of social services" in the present first sentence.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For comment, "The Implications of In re L.M.T.: A Call to the North Carolina General Assembly to Reinstate Procedural Safeguards, a Parent's Right to Appeal, and the Importance of a Permanency Planning Order," see 38 Campbell L. Rev. 241 (2016).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
The trial court had jurisdiction to enter a temporary nonsecure custody order placing children who had been visiting noncustodial parent in North Carolina, but whose "home state" under the former UCCJA was Iowa, with DSS where there was a reasonable factual
basis to believe that one child had been sexually abused and hospitalized for depression and the other child had been physically abused and was hospitalized for stress disorder, pending application to home state to determine if
Iowa was willing to exercise jurisdiction. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160 (1997), appeal dismissed, 347 N.C. 576, 502 S.E.2d
618 (1998).
Placement With Relatives. - When, in a dependency proceeding, a trial court placed a child's custody with the child's foster parents without finding it was contrary to the child's best interests to place her with willing relatives, pursuant to
G.S. 7B-903(a)(2)c, this was error because, inter alia, G.S. 7B-505 required the trial
court, in entering a nonsecure custody order, to first consider the child's placement with a relative; G.S. 7B-506(h) continued this requirement at each
hearing to determine the need for the child's continued custody outside of her home, so the general assembly intended to apply this requirement to reviews of custody placements. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).
§ 7B-505.1. Consent for medical care for a juvenile placed in nonsecure custody of a department of social services.
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Unless the court orders otherwise, when a juvenile is placed in the nonsecure custody of a county department of social services, the director may arrange for, provide, or consent to any of the following:
- Routine medical and dental care or treatment, including, but not limited to, treatment for common pediatric illnesses and injuries that require prompt intervention.
- Emergency medical, surgical, psychiatric, psychological, or mental health care or treatment.
- Testing and evaluation in exigent circumstances.
- When placing a juvenile in nonsecure custody of a county department of social services pursuant to G.S. 7B-502, the court may authorize the director to consent to a Child Medical Evaluation upon written findings that demonstrate the director's compelling interest in having the juvenile evaluated prior to the hearing required by G.S. 7B-506.
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The director shall obtain authorization from the juvenile's parent, guardian, or custodian to consent to all care or treatment not covered by subsection (a) or (b) of this section, except that the court may authorize the director to provide consent after
a hearing at which the court finds by clear and convincing evidence that the care, treatment, or evaluation requested is in the juvenile's best interest. Care and treatment covered by this subsection includes:
- Prescriptions for psychotropic medications.
- Participation in clinical trials.
- Immunizations when it is known that the parent has a bona fide religious objection to the standard schedule of immunizations.
- Child Medical Evaluations not governed by subsection (b) of this section, comprehensive clinical assessments, or other mental health evaluations.
- Surgical, medical, or dental procedures or tests that require informed consent.
- Psychiatric, psychological, or mental health care or treatment that requires informed consent.
- For any care or treatment provided, the director shall make reasonable efforts to promptly notify the parent, guardian, or custodian that care or treatment will be or has been provided and give the parent or guardian frequent status reports on the juvenile's treatment and the care provided. Upon request of the juvenile's parent, guardian, or custodian, the director shall make available to the parent, guardian, or custodian any results or records of the aforementioned evaluations, except when prohibited by G.S. 122C-53(d). The results of a Child Medical Evaluation shall only be disclosed according to the provisions of G.S. 7B-700.
- Except as prohibited by federal law, the department may disclose confidential information deemed necessary for the juvenile's assessment and treatment to a health care provider serving the juvenile.
- Unless the court has ordered otherwise, except as prohibited by federal law, a health care provider shall disclose confidential information about a juvenile to a director of a county department of social services with custody of the juvenile and a parent, guardian, or custodian.
History
(2015-136, s. 5; 2016-94, s. 12C.1(f1); 2017-161, s. 6.)
Editor's Note. - Session Laws 2015-136, s. 18, made this section effective October 1, 2015, and applicable to actions filed or pending on or after that date.
Effect of Amendments. - Session Laws 2016-94, s. 12C.1(f1), effective July 1, 2016, in the introductory language of subsection (c), substituted "authorization" for "consent" near the beginning and substituted "to consent to" for "for" following "juvenile's parent, guardian, or custodian."
Session Laws 2017-161, s. 6, effective October 1, 2017, substituted "Consent for medical care for a juvenile" for "Juvenile" at the beginning of the section heading; and rewrote subdivision (a)(1), which read: "Routine medical and dental care or treatment."
§ 7B-506. Hearing to determine need for continued nonsecure custody.
- No juvenile shall be held under a nonsecure custody order for more than seven calendar days without a hearing on the merits or a hearing to determine the need for continued custody. A hearing on nonsecure custody conducted under this subsection may be continued for up to 10 business days with the consent of the juvenile's parent, guardian, custodian, or caretaker and, if appointed, the juvenile's guardian ad litem. In addition, the court may require the consent of additional parties or may schedule the hearing on custody despite a party's consent to a continuance. In every case in which an order has been entered by an official exercising authority delegated pursuant to G.S. 7B-502, a hearing to determine the need for continued custody shall be conducted on the day of the next regularly scheduled session of district court in the city or county where the order was entered if such session precedes the expiration of the applicable time period set forth in this subsection: Provided, that if such session does not precede the expiration of the time period, the hearing may be conducted at another regularly scheduled session of district court in the district where the order was entered.
- At a hearing to determine the need for continued custody, the court shall receive testimony and shall allow the parties the right to introduce evidence, to be heard in the person's own behalf, and to examine witnesses. The petitioner shall bear the burden at every stage of the proceedings to provide clear and convincing evidence that the juvenile's placement in custody is necessary. The court shall not be bound by the usual rules of evidence at such hearings.
- The court shall be bound by criteria set forth in G.S. 7B-503 in determining whether continued custody is warranted.
- In determining whether continued custody is warranted, the court shall consider the opinion of the mental health professional who performed an evaluation under G.S. 7B-503(b) before returning the juvenile to the custody of that individual.
- If the court determines that the juvenile meets the criteria in G.S. 7B-503 and should continue in custody, the court shall issue an order to that effect. The order shall be in writing with appropriate findings of fact and signed and entered within 30 days of the completion of the hearing. The findings of fact shall include the evidence relied upon in reaching the decision and purposes which continued custody is to achieve.
- If the court orders at the hearing required in subsection (a) of this section that the juvenile remain in custody, a subsequent hearing on continued custody shall be held within seven business days of that hearing, excluding Saturdays, Sundays, and legal holidays when the courthouse is closed for transactions, and pending a hearing on the merits, hearings thereafter shall be held at intervals of no more than 30 calendar days.
- Hearings conducted under subsection (e) of this section may be waived only with the consent of the juvenile's parent, guardian, custodian, or caretaker, and, if appointed, the juvenile's guardian ad litem.
- In addition to the hearings required under this section, any party may schedule a hearing on the issue of placement.
- The provisions of G.S. 7B-905.1 shall apply to determine visitation.
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At each hearing to determine the need for continued custody, the court shall determine the following:
- Inquire as to the identity and location of any missing parent and whether paternity is at issue. The court shall include findings as to the efforts undertaken to locate the missing parent and to serve that parent, as well as efforts undertaken to establish paternity when paternity is an issue. The order may provide for specific efforts aimed at determining the identity and location of any missing parent, as well as specific efforts aimed at establishing paternity.
- Inquire about efforts made to identify and notify relatives as potential resources for placement or support and as to whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order temporary placement of the juvenile with the relative unless the court finds that placement with the relative would be contrary to the best interests of the juvenile. In placing a juvenile in nonsecure custody under this section, the court shall consider the Indian Child Welfare Act, Pub. L. No. 95-608, 25 U.S.C. §§ 1901, et seq., as amended, and the Howard M. Metzenbaum Multiethnic Placement Act of 1994, Pub. L. No. 103-382, 108 Stat. 4056, as amended, as they may apply. Placement of a juvenile with a relative outside of this State must be in accordance with the Interstate Compact on the Placement of Children set forth in Article 38 of this Chapter.
- If the court does not place the juvenile with a relative, the court may consider whether nonrelative kin or other persons with legal custody of a sibling of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. The court may order the department to notify the juvenile's State-recognized tribe of the need for nonsecure custody for the purpose of locating relatives or nonrelative kin for placement. The court may order placement of the juvenile with nonrelative kin or other persons with legal custody of a sibling of the juvenile if the court finds the placement is in the juvenile's best interests.
- Inquire as to whether there are other juveniles remaining in the home from which the juvenile was removed and, if there are, inquire as to the specific findings of the assessment conducted under G.S. 7B-302 and any actions taken or services provided by the director for the protection of the other juveniles.
The court may require the consent of additional parties or schedule a hearing despite a party's consent to waiver.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 13; 1987 (Reg. Sess., 1988), c. 1090, s. 4; 1994, Ex. Sess., c. 27, s. 1; 1997-390, ss. 5, 6; 1998-229, s. 4; 1998-202, s. 6; 1998-229, ss. 4.1, 21; 1999-318, s. 5; 1999-456, s. 60; 2001-208, ss. 16, 24; 2001-487, s. 101; 2003-337, s. 9; 2005-55, s. 11; 2007-276, s. 1; 2013-129, s. 14; 2015-136, s. 6; 2017-161, s. 7.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to subsections (b), (g), and (h), by Session Laws 2013-129, s. 14, applicable to actions filed or pending on or after October 1, 2013.
Session Laws 2015-136, s. 18, made the amendment to subdivision (h)(2a) of this section by Session Laws 2015-136, s. 6, applicable to actions filed or pending on or after October 1, 2015.
Effect of Amendments. - Session Laws 2007-276, s. 1, effective October 1, 2007, substituted "the right" for "an opportunity" in the first sentence of subsection (b).
Session Laws 2013-129, s. 14, effective October 1, 2013, substituted "petitioner" for "State" in the second sentence of subsection (b); rewrote subsection (g), which formerly read "Reserved"; added "determine the following" in the introductory paragraph of subsection (h); deleted "as to" preceding "whether paternity is at issue" in the first sentence of subdivision (h)(1); in subdivision (h)(2), added "about efforts made to identify and notify relative as potential resources for placement or support and" and made a minor stylistic change; and added subdivision (h)(2a). For applicability, see editor's note.
Session Laws 2015-136, s. 6, effective October 1, 2015, in subdivision (h)(2a), inserted "or other persons with legal custody of a sibling of the juvenile" in first and last sentences, deleted the second third sentences, which read: "Nonrelative kin is an individual having a substantial relationship with the juvenile. In the case of a juvenile member of a State-recognized tribe as set forth in G.S. 143B-407(a), nonrelative kin also includes any member of a State-recognized tribe or a member of a federally recognized tribe, whether or not there is a substantial relationship with the juvenile." For applicability, see editor's note.
Session Laws 2017-161, s. 7, effective October 1, 2017, substituted "parties" for "guardian ad litem, or juvenile, and the juvenile's parent, guardian, custodian, or caretaker" in the first sentence of subsection (b) and added subsection (g1).
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
The determination of "reasonable efforts" under former G.S. 7A-577(h) is a conclusion of law because it requires the exercise of judgment; appellate review of a trial court's conclusions of law is limited to whether they are supported by findings of fact.
In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
Court's Jurisdiction. - County department of social services (DSS) had no right to appeal the trial court's denial of the court's motion to review the foster care board rate provisions of a nonsecure custody order under G.S. 7B-1001(a)(1), which permitted appeal from any order finding absence of jurisdiction, as the trial court never ruled that the court lacked jurisdiction to decide DSS's motion. Under G.S. 7B-506(d), 7B-200(a), the trial court clearly had jurisdiction to enter a nonsecure custody order; and, assuming arguendo that the court erred in the scope of the court's order for board payments to foster parents, this did not necessarily deprive the court of jurisdiction. In re A.T., 191 N.C. App. 372, 662 S.E.2d 917 (2008).
When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503,
the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under
G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405,
and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).
Court's Taking Notice of Orders. - Notwithstanding the trial court's authority to take notice of the court's own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of the court's prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).
Reasonable Efforts Shown. - The DSS made reasonable efforts to prevent child's removal from her home where the DSS entered into four different protection plans with the mother regarding the care and protection of the child in an effort by DSS to stabilize
the child's home environment and protect her from violent individuals and drugs, and to encourage the mother to apply for food stamps, AFDC, and Medicaid. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
Agency Had Standing Under Nonsecure Custody Order. - DSS had standing to file a termination of parental rights petition as it had been granted indefinite custody of a child under a nonsecure custody order issued under G.S. 7B-506(a),
and G.S. 7B-1103(a)(3) did not limit standing to parties granted custody by an order entered pursuant to G.S. 7B-905,
but required only that DSS be granted custody by a court of competent jurisdiction. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).
Hearing on five petitions alleging abuse, neglect, and/or dependency was clearly denominated a hearing to determine the need for continued custody. The judge therefore had the discretion to either continue nonsecure custody or to return the children to
their home; he did not have the authority to dismiss the petitions because in so doing he made an unauthorized determination of the merits of the case. There is no express statutory authority allowing the judge to dismiss the petitions
at a five-day hearing. In re Guarante, 109 N.C. App. 598, 427 S.E.2d 883 (1993).
Placement With Relatives. - When, in a dependency proceeding, a trial court placed a child's custody with the child's foster parents without finding it was contrary to the child's best interests to place her with willing relatives, pursuant to
G.S. 7B-903(a)(2)c, this was error because, inter alia, G.S. 7B-505 required the trial
court, in entering a nonsecure custody order, to first consider the child's placement with a relative; G.S. 7B-506(h) continued this requirement at each
hearing to determine the need for the child's continued custody outside of her home, so the general assembly intended to apply this requirement to reviews of custody placements. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).
No Prejudice from Delay of Hearing for Continued Nonsecure Custody. - Mother's claim that a trial court violated G.S. 7B-506(a) by failing to hold a hearing
for continued nonsecure custody within seven calendar days after entry of a nonsecure custody order was overruled because although the initial nonsecure custody order was entered on 18 June 2007 and was set to expire on 25 June
2007, and the trial court did not conduct a hearing on the need for continued nonsecure custody until 27 June 2007, the mother did not make any argument as to how she was prejudiced by the two-day delay. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).
Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015).
§ 7B-507. Juvenile placed in nonsecure custody of a department of social services.
-
An order placing or continuing the placement of a juvenile in the nonsecure custody of a county department of social services:
- Shall contain a finding that the juvenile's continuation in or return to the juvenile's own home would be contrary to the juvenile's health and safety.
- Shall contain specific findings as to whether a county department of social services has made reasonable efforts to prevent the need for placement of the juvenile. In determining whether efforts to prevent the placement of the juvenile were reasonable, the juvenile's health and safety shall be the paramount concern. The court may find that efforts to prevent the need for the juvenile's placement were precluded by an immediate threat of harm to the juvenile. A finding that reasonable efforts were not made by a county department of social services shall not preclude the entry of an order authorizing the juvenile's placement when the court finds that placement is necessary for the protection of the juvenile.
- Repealed by Session Laws 2015-136, s. 7, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
- Shall specify that the juvenile's placement and care are the responsibility of the county department of social services and that the department is to provide or arrange for the foster care or other placement of the juvenile, unless after considering the department's recommendations, the court orders a specific placement the court finds to be in the juvenile's best interests.
- May order services or other efforts aimed at returning the juvenile to a safe home.
- through (d) Repealed by Session Laws 2015-136, s. 7, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
History
(1998-229, ss. 4.1, 21.1; 1999-456, s. 60; 2001-487, s. 2; 2005-398, s. 1; 2011-295, s. 3; 2013-129, s. 15; 2013-378, s. 1; 2015-136, s. 7.)
Editor's Note. - This section was originally enacted by Session Laws 1998-229, s. 4.1 as 7A-577.1 and was then amended and recodified by s. 21.1 of that act as 7B-506.1. It has been renumbered as 7B-507 at the direction of the Revisor of Statutes.
Session Laws 2015-136, s. 18, made the rewriting of this section by Session Laws 2015-136, s. 7, applicable to actions filed or pending on or after October 1, 2015.
Effect of Amendments. - Session Laws 2013-129, s. 15, effective October 1, 2013, in subsection (c), substituted "G.S. 7B-906.1(e)" for "G.S. 7B-907(b)" in the second sentence, and, in the third sentence, substituted "G.S. 7B-906.1" for "G.S. 7B-907." For applicability, see editor's note.
Session Laws 2013-378, s. 1, effective October 1, 2013, in subdivision (a)(2), inserted "specific," "either," and "the need for placement"; and, in subdivision (b)(4), added "has committed sexual abuse against the child or another child of the parent; or has been required to register as a sex offender on any government-administered registry" and made a minor stylistic and punctuation change.
Session Laws 2015-136, s. 7, effective October 1, 2015, rewrote the section heading and the section. For applicability, see editor's note.
Legal Periodicals. - For article, "The Parentless Child's Right to a Permanent Family," see 46 Wake Forest L. Rev. 1 (2011).
For comment, "The Implications of In re L.M.T.: A Call to the North Carolina General Assembly to Reinstate Procedural Safeguards, a Parent's Right to Appeal, and the Importance of a Permanency Planning Order," see 38 Campbell L. Rev. 241 (2016).
CASE NOTES
Applicability. - When a trial court granted children's custody to their grandparents and released department of social services from further responsibility, G.S. 7B-507(a), which requires findings as to the agency's obligation of reasonable efforts to eliminate the need for the children's placement in the agency's custody, did not apply. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).
Award of guardianship did not cease social services department's duty to continue reunification efforts with the mother because the dispositional order did not make a guardianship the permanent plan. Therefore, the trial court was not required to make findings pursuant to G. S. 7B-507(b). In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
Indian Child Welfare Act (ICWA), 25 U.S.C.S. § 1901 et seq., did not bar a trial court from finding, pursuant to G.S. 7B-507(b)(1), that reasonable efforts to reunify a father and child were not warranted because ICWA did not require reunification efforts to persist if such efforts were clearly inconsistent with a juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time, since ICWA shared the primary aim of the Adoption and Safe Families Act, 42 U.S.C.S. § 670 et seq., and North Carolina's Juvenile Code to protect and serve the best interests of children. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).
Indian Child Welfare Act (ICWA), 25 U.S.C.S.
§
1901 et seq., did not bar a trial court from finding, pursuant to G.S. 7B-507(b)(1), that reasonable efforts to reunify a father and child were
not warranted because the language of 25 U.S.C.S.
§
1912(d) did not prohibit ceasing reunification efforts before a proceeding to terminate parental rights, as the subsection only required a finding that "active efforts" to prevent the disruption of the Indian family
"proved unsuccessful." In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).
Notice Requirements. - Trial court erred in authorizing a permanent plan for a child at the disposition hearing on a dependency petition, seemingly without the required statutory notice to respondent. On remand, the trial court was required to provide the statutory notice. In the Matter of S.C.R., 217 N.C. App. 166, 718 S.E.2d 709 (2011).
Parents waived their right to notice of the trial court's intent to enter a permanent plan since they did not object to the entry of a permanent plan at disposition. In re J.P., 227 N.C. App. 537, 742
S.E.2d 853 (2013), sub. op. 2013 N.C. App. LEXIS 905 (N.C. Ct. App. 2013).
Reunification Efforts Not Warranted Due to Threat of Harm to Child. - Trial court repeatedly found that the immediate threat of harm to a child outweighed the reasonable efforts to reunify him with respondent mother. Due to the severe abuse by the mother
and the mother's reaction to the boyfriend's abuse, the trial court determined it was not in the best interests of the child to order reasonable efforts to reunify the child with respondent, as it was too dangerous to do so, and
the trial court properly complied with G.S. 7B-507. In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007),
review denied, 362 N.C. 235, 659 S.E.2d 738 (2008).
Reunification Efforts Not Warranted at Permanency Planning Hearing. - Given its findings, the trial court, at the permanency planning hearing, had no obligation to further attempt to reunify mother and child and, indeed, had the obligation to locate permanent
placement for the child outside of her home. In re Dula, 143 N.C. App. 16, 544 S.E.2d 591 (2001), aff'd, 354 N.C. 356, 554 S.E.2d 336 (2001).
Appointment of Permanent Legal Guardians in Disposition Order Held Improper. - Trial court erred in appointing permanent legal guardians in its disposition order where the mother did not have statutorily required notice that a permanent plan was being
considered and the trial court did not make the findings mandated by G.S. 7B-907(b), (c), and (f) (repealed, see now G.S. 7B-906.1).
In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).
Disposition Order Affirmed. - Trial court made uncontested findings, in part, that the return of the children to the parents' home would be contrary to the children's welfare and best interest because issues still existed and the children required more
adequate care than parents could currently provide, and reasonable efforts were made to prevent or eliminate the need for the children's placement, and the trial court's disposition order was affirmed. In re A.L.T.,
241 N.C. App. 443, 774 S.E.2d 316 (2015).
Findings Required. - In proceedings to terminate parental rights, a trial court's permanency planning order, which implicitly ceased reunification efforts between a mother and her children, did not comply with G.S. 7B-507(b) because, while the order detailed the mother's case history and her failure to complete her case plan, the order did not contain any of the findings of fact regarding the continuation or cessation of reunification efforts as required by G.S. 7B-507(b)(1). In re A.P.W., 225 N.C. App. 534, 741 S.E.2d 388 (2013), review denied, 747 S.E.2d 251, 2013 N.C. LEXIS 759 (2013).
Although a permanency planning order did not satisfy the statutory requirements, considering the order in conjunction with the termination of parental rights order satisfied the requirements because the two orders together embraced the substance of the
statutory provisions requiring findings of fact that further reunification efforts would have been futile or would have been inconsistent with a juvenile's health, safety, and need for a safe, permanent home within a reasonable
period of time. In re D.C., 236 N.C. App. 287, 763 S.E.2d 314 (2014).
Insufficient Evidence to Terminate Reunification Efforts. - Order terminating efforts to reunite mother and two year old daughter and directing termination of mother's parental rights was reversed as overwhelming evidence was that mother was cooperating with the reunification plan and was making progress and only the guardian ad litem recommended reunification efforts cease. In re Eckard, 144 N.C. App. 187, 547 S.E.2d 835 (2001).
Trial court's order which changed a mother's permanency planning order from reunification efforts with her two minor children to termination of her parental rights was based on findings of fact which were deemed insufficient to support the conclusions of law, and accordingly, there was no compliance with the requirement of subsection (b) of this section, and the order was reversed; the trial court failed to make specific factual findings that efforts towards reunification with the mother would be futile or that such efforts were inconsistent with the children's health, safety, and need for a permanent home, and the findings listed were actually conclusions of law. In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003).
Trial court erred in entering a permanency order relieving an agency from reunification efforts between a father and his children; the court failed to make required findings of fact pursuant to G.S. 7B-507(b) and G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1), and the evidence did not show that reunification was futile. In re Everett, 161 N.C. App. 475, 588 S.E.2d 579 (2003).
Trial court erred in terminating a mother's parental rights because it failed to make sufficient findings of fact, and did not ultimately find, as required by G.S. 7B-507(b)(1), that attempted reunification efforts would be futile, or reunification would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable time; since the trial court made findings of fact addressing the reunification efforts already made by the county department of social services and the mother's demonstrated failure to complete her case plan, but it did not link any of those findings to the two prongs set forth in G.S. 7B-507(b)(1). In re I.R.C., 214 N.C. App. 358, 714 S.E.2d 495 (2011).
Trial court erred when it ceased reunification efforts and awarded guardianship of a child to the child's foster parents because the evidence and the findings failed to support the trial court's conclusion that reunification efforts with one of the child's parents would have been futile or would have been inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time. In re I.K., 227 N.C. App. 264, 742 S.E.2d 588 (2013).
Trial court had an obligation to determine that efforts to reunite the child with the father would be futile before it could direct reunification efforts to cease. In re A.E.C., 239 N.C. App. 36, 768
S.E.2d 166 (2015).
Evidence Sufficient to Terminate Reunification Efforts. - Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her psychological problems, and (5) abuse and neglect adjudication regarding an older daughter. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).
In a case involving G.S. 7B-507(a) and G.S. 7B-907(c) (repealed, see now G.S. 7B-906.1), the trial court did not err in granting guardianship of the mother's three older children to the maternal aunt because the best interests of the children were paramount, and the trial court had no assurances the mother had made sufficient progress for the children to be returned to the mother's care. In re T.K., 171 N.C. App. 35, 613 S.E.2d 739 (2005).
Trial court's findings supported its conclusion that the children were dependent under G.S. 7B-101(9) because it found that the mother could not care for her children without constant assistance, and that such assistance was not available to her. In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006), aff'd, cert. dismissed, in part, 362 N.C. 172, 655 S.E.2d 712 (2008), In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).
Trial court did not err in failing to order the local social services department to assist the mother in her reunification efforts where the evidence supported the trial court's findings that continued reunification efforts were unlikely to succeed and were not in the children's best interests. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).
Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901, G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Trial court's 17 findings supported its conclusion that further reunification efforts with the parents would be futile for purposes of G.S. 7B-507(b)(1) and (3), including that: (1) the parents were mildly mentally retarded; (2) the mother shared characteristics with parents known to abuse their children; (3) the mother failed to comply with a sibling's case plan; (4) the department of social services had offered the parents intensive case management services after the child's birth; and (5) there was a concern about the father's ability to be a primary caretaker. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Decision to cease reunification efforts and visitation was not manifestly unsupported because there was clear and convincing evidence supporting the trial court's dispositional finding that the parents failed to cooperate with various social workers when their first child was placed in protective custody, failed to fully comply with family service plans relating to the removal of their first child, did not make reasonable efforts at reunification with their first child, and did not recognize appropriate responsibility or involvement in the injuries of their first child. In re N.G., 186 N.C. App. 1, 650 S.E.2d 45 (2007), aff'd, 362 N.C. 229, 657 S.E.2d 355 (2008).
Reunification efforts were not required under G.S. 7B-507(b)(1) when a juvenile who was in foster care and who had experienced domestic abuse displayed bizarre behaviors after visiting with the juvenile's parent, because reunification was inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time; furthermore, the juvenile's bizarre behaviors coincided with the visits, and after the visits were ceased, the juvenile made significant changes for the better. In re T.R.M., 208 N.C. App. 160, 702 S.E.2d 108 (2010).
In a parental rights termination proceeding, a trial court, through processes of logical reasoning and based on the evidentiary facts before it, found the ultimate facts essential to support the conclusions of law that directed that reunification efforts cease; the necessary findings for such cessation were sufficiently made pursuant to G.S. 7B-507(b)(1). In the Matter of T.J.C., 225 N.C. App. 556, 738 S.E.2d 759 (2013), review denied, 743 S.E.2d 194, 2013 N.C. LEXIS 538 (2013), review denied, 2013 N.C. LEXIS 631 (2013).
There was no abuse of discretion in a trial court's order that provided for cessation of reunification efforts between parents and their minor children pursuant to G.S. 7B-507(b)(1), as there were extensive findings regarding the father's history of domestic violence, the impact of that violence on the minor children, and the father's lack of appreciation of the effect of such violence, even after attending the available programs. In the Matter of T.J.C., 225 N.C. App. 556, 738 S.E.2d 759 (2013), review denied, 743 S.E.2d 194, 2013 N.C. LEXIS 538 (2013), review denied, 2013 N.C. LEXIS 631 (2013).
Trial court's decision to cease reunification efforts and award guardianship of a child to the paternal grandparents was not done in error under G.S. 7B-507(b)(1) because the court's findings established that verbal aggression and significant conflict between the parents was continuing, including two significant episodes only three months before the hearing, and the parents had not successfully engaged in couples therapy. The conflict and domestic violence continued to have a detrimental effect on the child's physical and emotional well-being. In re A.Y., 225 N.C. App. 29, 737 S.E.2d 160 (2013), review denied 367 N.C. 235, 748 S.E.2d 539, 2013 N.C. LEXIS 1009 (2013).
Trial court's decision to cease reunification efforts with respect to a mother's children was supported by its findings, which were not challenged on appeal, that reunification was not in their best interest since their parents had not addressed the issue of child abuse. In re J.P., - N.C. App. - , 745 S.E.2d 917 (Aug. 6, 2013).
Trial court properly found further efforts to reunify a mother's children with the mother were unwarranted because uncontested findings of fact supported the court's conclusions that reunification efforts were inconsistent with the children's health, safety and need for a permanent home within a reasonable period of time and were not required. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).
Trial court's finding that a mother and her husband were not addressing the husband's abuse of one child by remaining together although there was a no-contact order between the husband and child were linked to and supported the trial court's conclusion that reunification efforts should cease as required by G.S. 7B-507(b). In re J.P., 230 N.C. App. 523, 750 S.E.2d 543 (2013).
Trial court did not err in entering an order ceasing reunification because the findings in the cease reunification order standing alone suggested that reunification efforts would be futile; the order found unchallenged that the mother failed to attend
visits or complete her case plan, had pending criminal charges, and had not been participating in drug screens, and as such, the children would be unable to go home within six months. In re H.D., 239 N.C. App. 318, 768 S.E.2d 860 (2015).
Findings Sufficient to Terminate Reunification Efforts. - Trial court properly related its findings that child two could not be placed with her mother since she resided with the father and he had a no contact order with child two, that the father had pled guilty to child abuse and had violated his probation and that a permanent plan of custody was in the children's best interests to a conclusion of law that specifically set forth the basis for ceasing reunification efforts. In re J.P., 227 N.C. App. 537, 742 S.E.2d 853 (2013), sub. op. 2013 N.C. App. LEXIS 905 (N.C. Ct. App. 2013).
Trial court's order embraced the substance of the statutory provisions requiring findings of fact that further reunification efforts would be futile or inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time. In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013).
Trial court did not err in ordering that reunification efforts with the mother cease because they were inconsistent with the child's health, safety and need for a safe, permanent home as the mother had not shown sustained parenting improvements during
the last two years; she had sporadic visitation attendance during the last two years; a social worker testified that the mother had been unable to consistently demonstrate skills learned in parenting classes during her interactions
with the child; the mother lacked awareness of or insight into her own past of domestic violence with the child's father; despite working on anger management issues for over a year, she could not control her emotions; and she had
failed to maintain stable housing. In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016).
Findings Insufficient to Terminate Reunification Efforts. - Insufficient findings supported a trial court's conclusion that reasonable efforts to reunify a father and a child were not required because (1) limited facts cited did not show further efforts
would be futile or inconsistent with the child's need for a safe, permanent home within a reasonable period of time, and (2) the findings mostly addressed the child's mother. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).
Functional Equivalent of Reasonable Efforts Shown. - Trial court complied with G.S. 7B-507(a)(3) when it ordered the Department of Social Services to supervise
the mother's visitation and to aid the mother in a substance abuse assessment and psychological evaluation, the functional equivalent of making reasonable efforts. In re H.D.F., 197 N.C. App. 480, 677
S.E.2d 877 (2009).
Concurrent Permanent Placement Plan of Reunification and Adoption Held Proper. - Concurrent permanent placement plan of reunification and adoption as allowed by G.S. 7B-507(d) did not conflict with the requirement of G.S. 7B-907(a) (repealed, see now G.S. 7B-906.1)
to obtain permanent placement within a reasonable period of time; concurrent plans leading to adoption of children by their foster parents and reunification with their mother were proper. In re J.J.L., 170 N.C. App. 368, 612 S.E.2d 404 (2005).
Placement with County Social Services Department. - Trial court did not err in placing the minor child in the custody of the county social services department despite the father's contention that the minor child could have been placed with relatives;
no showing was made that suitable relatives existed, especially since the father's paternity was at issue, and thus placement with the paternal grandparents as suggested by the father might not be in the best interests of the minor
child since the minor child might find that they were not the minor child's relatives after all. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).
Placement With Non-Relative. - Trial court did not abuse its discretion by placing a mother's children in a non-relative placement because either no suitable relative was available or it was not in the children's best interests to place them with a relative,
and reunification efforts would be inconsistent with their health, safety and need for a permanent home within a reasonable period of time. In re T.H., 232 N.C. App. 16, 753
S.E.2d 207 (2014).
Appeals. - Mother had the right to appeal a permanency planning order because the order, while not explicitly ceasing reunification efforts, implicitly did so by changing the permanent plan to adoption and ordering the filing of a petition to terminate parental rights and the mother properly preserved her right to appeal the cessation of reunification efforts pursuant to G.S. 7B-507(c). In re A.P.W., 225 N.C. App. 534, 741 S.E.2d 388 (2013), review denied, 747 S.E.2d 251, 2013 N.C. LEXIS 759 (2013).
Motion filed by the county department of social services to dismiss a mother's appeal from a order ceasing reunification was denied because the appeal was combined with the mother's appeal of an order terminating her parental rights. In re H.D.,
239 N.C. App. 318, 768 S.E.2d 860 (2015).
Applied in In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004); In re M.R.D.C., 166 N.C. App. 693, 603 S.E.2d 890 (2004), cert. denied, 359 N.C. 321,
611 S.E.2d 413 (2005); In re N.B., 240 N.C. App. 353, 771 S.E.2d 562 (2015).
Cited in In re K.S, 183 N.C. App. 315, 646 S.E.2d 541 (2007); In re C.M.S., 184 N.C. App. 488, 646 S.E.2d 592 (2007); In re S.C.R., 198 N.C. App. 525, 679 S.E.2d 905 (2009), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009); In re J.M.D., 210 N.C. App. 420, 708 S.E.2d 167 (2011); In re D.M., 211 N.C. App. 382, 712 S.E.2d 355 (2011); In re H.J.A., 223 N.C. App. 413, 735 S.E.2d 359 (2012); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).
§ 7B-508. Telephonic communication authorized.
All communications, notices, orders, authorizations, and requests authorized or required by G.S. 7B-501, 7B-503, and 7B-504 may be made by telephone when other means
of communication are impractical. All written orders pursuant to telephonic communication shall bear the name and the title of the person communicating by telephone, the signature and the title of the official entering the order, and
the hour and the date of the authorization.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 13; 1987 (Reg. Sess., 1988), c. 1090, s. 4; 1994, Ex. Sess., c. 27, s. 1; 1997-390, ss. 5, 6; 1998-202, s. 6; 1998-229, s. 4; 1999-456, s. 60.)
Editor's Note. - This section was originally enacted as G.S. 7B-507. It has been renumbered as this section at the direction of the Revisor of Statutes.
ARTICLE 6. Basic Rights.
Sec.
§ 7B-600. Appointment of guardian.
- In any case when no parent appears in a hearing with the juvenile or when the court finds it would be in the best interests of the juvenile, the court may appoint a guardian of the person for the juvenile. The guardian shall operate under the supervision of the court with or without bond and shall file only such reports as the court shall require. The guardian shall have the care, custody, and control of the juvenile or may arrange a suitable placement for the juvenile and may represent the juvenile in legal actions before any court. The guardian may consent to certain actions on the part of the juvenile in place of the parent including (i) marriage, (ii) enlisting in the Armed Forces of the United States, and (iii) enrollment in school. The guardian may also consent to any necessary remedial, psychological, medical, or surgical treatment for the juvenile. The authority of the guardian shall continue until the guardianship is terminated by court order, until the juvenile is emancipated pursuant to Article 35 of Subchapter IV of this Chapter, or until the juvenile reaches the age of majority.
- In any case where the court has determined that the appointment of a relative or other suitable person as guardian of the person for a juvenile is the permanent plan for the juvenile and appoints a guardian under this section, the guardian becomes a party to the proceeding. The court may terminate the guardianship only if (i) the court finds that the relationship between the guardian and the juvenile is no longer in the juvenile's best interest, (ii) the guardian is unfit, (iii) the guardian has neglected a guardian's duties, or (iv) the guardian is unwilling or unable to continue assuming a guardian's duties.
-
If a party files a motion under G.S. 7B-906.1 or G.S. 7B-1000, the court may, prior to conducting a review hearing, do one or more of the following:
- Order the county department of social services to conduct an investigation and file a written report of the investigation regarding the performance of the guardian of the person of the juvenile and give testimony concerning its investigation.
- Utilize the community resources in behavioral sciences and other professions in the investigation and study of the guardian.
- Ensure that a guardian ad litem has been appointed for the juvenile in accordance with G.S. 7B-601 and has been notified of the pending motion or petition.
- Take any other action necessary in order to make a determination in a particular case.
- If the court appoints an individual guardian of the person pursuant to this section, the court shall verify that the person being appointed as guardian of the juvenile understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile. The fact that the prospective guardian has provided a stable placement for the juvenile for at least six consecutive months is evidence that the person has adequate resources.
History
(1979, c. 815, s. 1; 1997-390, s. 7; 1998-202, s. 6; 1999-456, s. 60; 2000-124, s. 1; 2003-140, s. 9(a); 2011-183, s. 3; 2011-295, s. 4; 2013-129, s. 16; 2019-33, s. 7(a).)
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 16, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2011-183, s. 3, effective June 20, 2011, substituted "Armed Forces of the United States" for "armed forces" in the fourth sentence of subsection (a).
Session Laws 2013-129, s. 16, effective October 1, 2013, rewrote the former provisions of subsection (b) as present subsections (b) and (b1). For applicability, see editor's note.
Session Laws 2019-33, s. 7(a), effective October 1, 2019, added the last sentence of subsection (c).
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Applicability. - Trial court's denial of a mother's request to regain legal and physical custody of her minor child, who was in the legal custody of the county department of social services and under the guardianship of the child's grandparents, was reversed
and remanded because while the court held multiple proceedings pursuant to G.S. 7B-906 (repealed, see now G.S. 7B-906.1),
there was never a finding made that guardianship was the permanent plan under G.S. 7B-907 (repealed, see now G.S. 7B-906.1);
therefore, G.S. 7B-600(b) was inapplicable, and the trial court erred by imposing the burden of proof upon the mother. In re J.D.C., 174 N.C. App. 157, 620 S.E.2d 49 (2005).
Mother Had Standing to Bring Appeal. - Mother had standing to appeal a permanency planning order awarding guardianship of a child to foster parents because the statutory requirements were satisfied since the trial court's permanency planning order changed legal custody of the child from county department of social services to the foster parents, and the mother was the child's parent who was a "nonprevailing party"; the mother asserted her own parental interest in having the child placed in a foster home with is half-siblings. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).
Removal of Guardian. - A legal guardian of a child's person, unlike a mere custodian, is not removable for a mere change of circumstances; unfitness or neglect of duty must be shown. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428 (1985), cert. denied, 316 N.C. 194, 341 S.E.2d 584 (1986).
Adequate Resources. - Evidence supported the finding that the child's aunt had adequate resources to care for the child; while some evidence indicated that the aunt had financial difficulties over the summer, and her testimony was lacking in specificity,
her sworn statement that she was willing to care for the child and possessed the financial resources to do so constituted competent evidence supporting the trial court's ruling. In re N.H., 255 N.C. App. 501, 804 S.E.2d 841 (2017).
Failure to Ensure Guardian had Ability to Support Child. - Trial court erred in failing the verify that the guardian, the father's girlfriend, had adequate resources to care appropriately for the child, as required by this section and G.S.7B-906.1(j), as the guardian's assurance that she had the financial and emotional ability to support the child was not sufficient evidence of such ability In re P.A., 241 N.C. App. 53, 772 S.E.2d 240 (2015).
Trial court did not adequately insure that a child's proposed guardians understood the legal significance of guardianship or had the means to support the child because (1) the proposed guardians did not testify, so the court could not independently verify
the proposed guardians' understanding, and (2) insufficient evidence of the proposed guardians' ability to support the child was introduced. In re J.H., 244 N.C. App. 255, 780
S.E.2d 228 (2015).
Appointment of Guardian Was Proper. - Guardian was properly appointed for child where the dispositional order demonstrated that the trial court found guardianship to be in the child's best interest following the presentation at the adjudicatory hearing of all the evidence concerning the mother's failure to properly care for the child, and after the review of the social service department's and guardian ad litem's reports. Additionally, the mother did not appear at the dispositional hearing, providing the court with additional grounds to appoint a guardian. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
Amended G.S. 7B-906(b) (repealed, see now G.S. 7B-906.1) and G.S. 7B-600(b) applied to a review conducted in October 2002 because the amended statutes applied to reviews that were commenced after October 1, 2000. In re J.D.C., 174 N.C. App. 157, 620 S.E.2d 49 (2005).
Based on its consideration of reports from a home study conducted by a county department of social services in Virginia, a trial court adequately complied with G.S. 7B-600(c) and G.S. 7B-907(f) (repealed, see now G.S. 7B-906.1) in placing children in the guardianship of their maternal grandparents. In re J.E., 182 N.C. App. 612, 643 S.E.2d 70 (2007), review denied, 361 N.C. 427, 648 S.E.2d 504 (2007).
Trial court performed its statutory duty in awarding guardianship to the foster parents where it verified that the foster parents understood the legal significance of their appointment as guardians. In re J.M., - N.C. App. - , 843 S.E.2d 668 (2020).
Applied in In re J.V., 198 N.C. App. 108, 679 S.E.2d 843 (2009).
Cited in In re J.L.S., 168 N.C. App. 721, 608 S.E.2d 823 (2005); In re L.M.C., 170 N.C. App. 676, 613 S.E.2d 256 (2005); In re T.R.M., 188 N.C. App. 773, 656 S.E.2d 626 (2008); In re P.O., 207 N.C. App. 35, 698 S.E.2d 525 (2010); In re D.H.H., 208 N.C. App. 549, 703 S.E.2d 803 (2010); In re I.K., 227 N.C. App. 264, 742 S.E.2d 588 (2013); In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013); In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014); In re N.B., 240 N.C. App. 353,
771 S.E.2d 562 (2015); In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016).
§ 7B-601. Appointment and duties of guardian ad litem.
- When in a petition a juvenile is alleged to be abused or neglected, the court shall appoint a guardian ad litem to represent the juvenile. When a juvenile is alleged to be dependent, the court may appoint a guardian ad litem to represent the juvenile. The juvenile is a party in all actions under this Subchapter. The guardian ad litem and attorney advocate have standing to represent the juvenile in all actions under this Subchapter where they have been appointed. The appointment shall be made pursuant to the program established by Article 12 of this Chapter unless representation is otherwise provided pursuant to G.S. 7B-1202 or G.S. 7B-1203. The appointment shall terminate when the permanent plan has been achieved for the juvenile and approved by the court. The court may reappoint the guardian ad litem pursuant to a showing of good cause upon motion of any party, including the guardian ad litem, or of the court. In every case where a nonattorney is appointed as a guardian ad litem, an attorney shall be appointed in the case in order to assure protection of the juvenile's legal rights throughout the proceeding. The duties of the guardian ad litem program shall be to make an investigation to determine the facts, the needs of the juvenile, and the available resources within the family and community to meet those needs; to facilitate, when appropriate, the settlement of disputed issues; to offer evidence and examine witnesses at adjudication; to explore options with the court at the dispositional hearing; to conduct follow-up investigations to insure that the orders of the court are being properly executed; to report to the court when the needs of the juvenile are not being met; and to protect and promote the best interests of the juvenile until formally relieved of the responsibility by the court.
- The court may authorize the guardian ad litem to accompany the juvenile to court in any criminal action wherein the juvenile may be called on to testify in a matter relating to abuse.
- The guardian ad litem has the authority to obtain any information or reports, whether or not confidential, that may in the guardian ad litem's opinion be relevant to the case. No privilege other than the attorney-client privilege may be invoked to prevent the guardian ad litem and the court from obtaining such information. The confidentiality of the information or reports shall be respected by the guardian ad litem, and no disclosure of any information or reports shall be made to anyone except by order of the court or unless otherwise provided by law.
History
(1979, c. 815, s. 1; 1981, c. 528; 1983, c. 761, s. 159; 1987 (Reg. Sess., 1988), c. 1090, s. 5; 1993, c. 537, s. 1; 1995, c. 324, s. 21.13; 1998-202, s. 6; 1999-432, s. 1; 1999-456, s. 60.)
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For comment, "The Child Abuse Amendments of 1984: Congress Is Calling North Carolina to Respond to the Baby Doe Dilemma," 20 Wake Forest L. Rev. 975 (1984).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Former G.S. 7A-586 (see now this section) did not prevent the application of other pertinent statutory provisions. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415,
349 S.E.2d 589 (1986).
Whether appointment of a guardian ad litem for a minor is necessary is controlled by G.S. 1A-1, Rule 17(b). In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).
Appointment Of Guardian Ad Litem Program Staff Member Satisfies Requirements Of The Statute. - Trial court's appointment of a guardian ad litem was valid because the use of a properly appointed Guardian Ad Litem Program staff member to serve as a juvenile's
guardian ad litem fully satisfied the requirements of G.S. 7B-601; when a Guardian Ad Litem Program staff member is formally appointed
by the trial court to serve as an individual guardian ad litem and fulfills the duties of a guardian ad litem as required by G.S. 7B-601(a), that staff member
is acting as an actual guardian ad litem under the statute and cannot be considered a substitute or "de facto" guardian. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).
Trial court erred in failing to appoint a guardian ad litem (GAL) for the child from the beginning of a termination proceeding; a GAL and an attorney advocate performed distinct and separate roles, so the appointment of the attorney advocate as the GAL after three and a half days of testimony was insufficient, even though the advocate had been involved in the case from an earlier time. In re R.A.H., 171 N.C. App. 427, 614 S.E.2d 382 (2005).
Because five different guardian ad litems (GAL) made sporadic appearances for a mother's children at different hearings over a three-year period, and the only GAL actually appointed by the court never appeared at any hearing, there was no GAL discharging
their duty to protect and promote the best interests of the children until formally relieved of the responsibility by the court as required by G.S. 7B-601(a).
In re J.E., 183 N.C. App. 217, 644 S.E.2d 28 (2007), rev'd 362 N.C. 168, 655 S.E.2d 831 (2008), In re J.E., 183 N.C. App. 217, 644 S.E.2d 28
(2007).
Trial court did not err in failing to appoint a guardian ad litem for a mother's son because the guardian ad litem prepared a report, which reflected an investigation that complied with her duties as set forth in G.S. 7B-601(a); the report was submitted to the trial court in connection with the initial adjudication hearing, the trial court's adjudication and disposition order asserted that the guardian ad litem appeared at the hearing on the son's behalf, and that she submitted a report to the trial court relating to the son. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).
Trial court did not err in conducting a permanency planning review hearing in the absence of a guardian ad litem appointed to represent a juvenile because the juvenile's mother neither asserted nor argued prejudice as a result of the absence of a guardian ad litem at the permanency planning hearing; according to the plain language of G.S. 7B-1108 and G.S. 7B-601, the guardian ad litem's appointment did not terminate until the permanent plan had been achieved for the juvenile and approved by the court, and consequently, the guardian ad litem was required to continue to represent the juvenile at the permanency planning review hearing, but, standing alone, the failure to adhere to the requirement during a permanency planning hearing did not warrant reversal and, as such, the matter was subject to harmless error review. In re H.K.L., - N.C. App. - , - S.E.2d - (May 3, 2011).
Because the mother failed to object to the lack of a guardian ad litem (GAL) for the child during the termination proceedings, the issue was not preserved for appellate review; furthermore, the appellate court did not find it necessary to invoke the rule
suspending the Rules of Appellate Procedure to prevent manifest injustice to either the mother or the child and to review the decision not to appoint a GAL in light of the mother's willful failure to make progress on her case plan,
both before and after reunification efforts were ceased, and because a GAL appointment was not statutorily required. In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016).
Clerical Error. - Attorney who was appointed to serve as guardian ad litem (GAL) and attorney advocated investigated the case prior to the termination hearing and reported his observations to the trial court, such that competently fulfilled his role as
GAL, and the trial court's clerical oversight in its execution of the proper form regarding its failure to check the GAL designation box for the person whom it properly designated on the same form to serve as attorney advocate
was not prejudicial error. In re C.J.C., 374 N.C. 42, 839 S.E.2d 742 (2020).
Guardian's Acceptance of Petition to Terminate Parental Rights Sufficient for Jurisdiction. - Because the captions of the summonses naming the parents as respondents stated the name of the juvenile, and the guardians ad litem for the juvenile certified
that they accepted service of the petition on the juvenile's behalf, the trial court had subject matter jurisdiction to hear the petition for termination of parental rights. In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008).
Guardian's Physical Presence. - As G.S. 7B-601 and G.S. 7B-1108 mandated the guardian ad litem's (GAL) physical presence at a termination of parental rights hearing, because a GAL was not present the court presumed prejudice, as the children were not represented by a GAL at a critical stage of the termination proceedings. In re J.H.K., 205 N.C. App. 165, 695 S.E.2d 162 (2010).
While the presence of the minor children's nonattorney guardian ad litem (GAL) volunteer at a termination of parental rights (TPR) hearing was preferable, the nonlawyer volunteer's attendance was not mandatory because, given the role of the attorney advocate
to assist the GAL, the general assembly did not intend by the use of the word "represent" in G.S. 7B-1108(b) to obligate the volunteer
GAL to appear in court during the TPR hearing unless the attorney advocate or the trial court deemed the GAL's presence necessary to protect the minor's best interests; G.S. 7B-1108 did not impose on the GAL volunteer a special duty to "represent" a juvenile beyond what G.S. 7B-601 required of a GAL as an appointed member of the GAL program.
The GAL program performed the duties listed in G.S. 7B-601(a). In re J.H.K., 365 N.C. 171, 711 S.E.2d 118 (2011).
Authority of Guardian ad Litem to Inquire as to Child's Adoption. - It was the duty and right of guardian ad litem to inquire into Department of Social Services' handling of child's adoption, and it was within the district court's jurisdiction to order
DSS to turn over requested information, despite its confidential nature. In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, cert. denied, 322 N.C. 481,
370 S.E.2d 226 (1988).
Continuing Duty to Conduct Follow-Up Investigations. - Former G.S. 7A-586 (see now this section) gave the guardian ad litem many more responsibilities and duties than a guardian ad litem ordinarily had. The guardian ad litem had the continuing duty to
conduct follow-up investigations and to report to the court when the needs of the juveniles were not being met. Wilkinson v. Riffel, 72 N.C. App. 220, 324 S.E.2d 31 (1984).
Right of Guardian to Confidential Information. - Former G.S. 7A-586 (see now this section) specifically gave the court the power to order that the guardian ad litem have confidential information which in the opinion of the guardian ad litem is relevant to the case. Wilkinson v. Riffel, 72 N.C. App. 220, 324 S.E.2d 31 (1984).
The court may order the release of confidential information to a guardian ad litem if the guardian ad litem needs the information to determine whether the needs of the juveniles are being met. Wilkinson v. Riffel, 72 N.C. App. 220, 324 S.E.2d 31 (1984).
District Court's Jurisdiction Held Not Ended by Notice of Adoption Petition. - District court jurisdiction attached on March 25, 1987, when guardian ad litem filed a motion in district court to compel Department of Social Services (DSS) to grant his requests
to visit child and to obtain information on any prospective adoptive parents, and subsequent notice, received on March 31, 1987, to the effect that a petition for adoption had been filed, did not end the district court's jurisdiction.
In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, cert. denied, 322 N.C. 481, 370 S.E.2d 226 (1988).
Failure to Communicate Child's Desires to Court. - Therapists' most recent recommendation was to allow the child to decide on visiting mother and the record showed the child's expressed desire and efforts to maintain contact with his mother, which was not communicated to the court by the guardian ad litem; why the child was not permitted to testify was missing from the record, and as he was 17 years old, his opinion carried great weight. Order eliminating reunification efforts was vacated. In re J.C.-b., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Prior Termination Proceedings. - In a termination of parental rights case in which a mother argued that the trial court violated her rights and committed reversible error by failing to ensure that the children had proper guardian ad litem (GAL) representation
throughout every critical stage of the proceeding, the 20 April 2009 order terminating the mother's parental rights was the only order currently before the appellate court. By an order filed on 19 March 2009, an individual was
appointed as the children's GAL; therefore, the children were represented by a GAL at the 19 March 2009 termination hearing, and any alleged violation of G.S. 7B-601(a),
with respect to the prior termination hearings, could not be used to challenge the 17 April 2009 order. In re N.B., 200 N.C. App. 773, 688 S.E.2d 713 (2009).
Guardian Ad Litem Duties Satisfied. - Guardian Ad Litem Program satisfied its duties during abuse and neglect proceedings under G.S. 7B-601(a) because the
attorney advocate was present during both portions of the proceedings and actively participated by questioning witnesses and offering recommendations for adjudication and disposition; the content of the attorney advocate's questions
sufficiently demonstrated that the Guardian Ad Litem Program had actively investigated the case prior to the hearing. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).
Applied in In re L.B., 181 N.C. App. 174, 639 S.E.2d 23 (2007); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).
Cited in In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005); In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011); In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013); In re A.D.N., 231 N.C. App. 54, 752 S.E.2d 201 (2013), review denied, 755 S.E.2d 626, 2014 N.C. LEXIS 232 (2014); In
re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014); S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015); In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016); In re D.M.O., 250 N.C. App. 570, 794 S.E.2d 858 (2016).
§ 7B-602. Parent's right to counsel; guardian ad litem.
-
In cases where the juvenile petition alleges that a juvenile is abused, neglected, or dependent, the parent has the right to counsel and to appointed counsel in cases of indigency unless that person waives the right. When a petition is filed alleging
that a juvenile is abused, neglected, or dependent, the clerk shall appoint provisional counsel for each parent named in the petition in accordance with rules adopted by the Office of Indigent Defense Services and shall indicate
the appointment on the juvenile summons or attached notice. At the first hearing, the court shall dismiss the provisional counsel if the respondent parent:
- Does not appear at the hearing;
- Does not qualify for court-appointed counsel;
- Has retained counsel; or
- Waives the right to counsel.
- A parent qualifying for appointed counsel may be permitted to proceed without the assistance of counsel only after the court examines the parent and makes findings of fact sufficient to show that the waiver is knowing and voluntary. The court's examination shall be reported as provided in G.S. 7B-806.
- In addition to the right to appointed counsel set forth above, a guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent who is under the age of 18 years and who is not married or otherwise emancipated. The appointment of a guardian ad litem under this subsection shall not affect the minor parent's entitlement to a guardian ad litem pursuant to G.S. 7B-601 in the event that the minor parent is the subject of a separate juvenile petition.
- On motion of any party or on the court's own motion, the court may appoint a guardian ad litem for a parent who is incompetent in accordance with G.S. 1A-1, Rule 17.
- The parent's counsel shall not be appointed to serve as the guardian ad litem and the guardian ad litem shall not act as the parent's attorney. Communications between the guardian ad litem appointed under this section and the parent and between the guardian ad litem and the parent's counsel shall be privileged and confidential to the same extent that communications between the parent and the parent's counsel are privileged and confidential.
- Repealed by Session Laws 2013-129, s. 17, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
The court shall confirm the appointment of counsel if subdivisions (1) through (4) of this subsection are not applicable to the respondent parent.
The court may reconsider a parent's eligibility and desire for appointed counsel at any stage of the proceeding.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 14; 1998-202, s. 6; 1999-456, s. 60; 2000-144, s. 16; 2001-208, s. 2; 2001-487, s. 101; 2005-398, s. 2; 2011-326, s. 12(a); 2013-129, s. 17.)
Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
As to relinquishment of a juvenile to a department of social services for the purpose of adoption, see G.S. 7B-909.1.
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 17, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2011-326, s. 12(a), effective June 27, 2011, inserted "in accordance with rules adopted by the Office of Indigent Defense Services" in the second sentence of the introductory paragraph in subsection (a).
Session Laws 2013-129, s. 17, effective October 1, 2013, added subsection (a1); in subsection (c), inserted "who is incompetent" and deleted "if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest. The parent's counsel shall not be appointed to serve as the guardian ad litem" following "Rule 17"; added the first sentence in subsection (d); and deleted subsection (e). For applicability, see editor's note.
Legal Periodicals. - For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).
For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Right to Counsel, Generally. - In a child dependency proceeding, services of counsel cannot be forced upon an unwilling defendant; however, the waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record
must show that the defendant is literate and competent, that he understands the consequences of his waiver, and that, in waiving his right, he is voluntarily exercising his own free will. In re S.L.L.,
167 N.C. App. 362, 605 S.E.2d 498 (2004).
Counsel Not Required in Every Termination Proceeding. - It cannot be said that the Constitution requires the appointment of counsel in every parental termination proceeding; the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings is to be answered in the first instance by the trial court, subject to appellate review. Lassiter v. Department of Social Servs., 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640, rehearing denied, 453 U.S. 927, 102 S. Ct. 889, 69 L. Ed. 2d 1023 (1981).
Effect of Appointment But Not Representation. - Because a parent was initially appointed a guardian ad litem (GAL) pursuant to G.S. 7B-602 and G.S. 1A-1-17, but not ultimately represented by a GAL during the termination hearing, an order terminating the parent's parental rights was invalid. In re A.S.Y., 208 N.C. App. 530, 703 S.E.2d 797 (2010).
In case where the trial court entered adjudication and disposition orders finding the mother's two sons to be neglected and dependent juveniles, because the trial court determined that the mother could not adequately represent her own interests, and appointed
a guardian ad litem (GAL) to represent her, conducting the adjudication and disposition hearings without the presence and participation of the GAL for the mother was error. In re D.L.P., 242 N.C. App. 597, 776 S.E.2d 241 (2015).
Parent's Right to Waive Counsel and Proceed Pro Se. - Trial court did not err under G.S. 7B-602(a) in allowing a child's parent to waive counsel and proceed pro se because the guardian ad litem was acting only in an assistive capacity, the parent had the ability to waive counsel, and the trial court adequately determined that the parent knowingly and voluntarily waived the parent's right to counsel. In re A.Y., 225 N.C. App. 29, 737 S.E.2d 160 (2013), review denied 367 N.C. 235, 748 S.E.2d 539, 2013 N.C. LEXIS 1009 (2013).
Trial court did not abuse its discretion by denying the mother's request to waive counsel and represent herself in a proceeding that adjudicating her children abused and neglected juveniles because this section did not require the trial court to allow
parents to waive counsel and represent themselves but rather gave the trial court the discretion to do so, the court held that there was no constitutional right to self-representation for a parent in an abuse, neglect, and dependency
proceeding, and it was apparent that the mother was entirely under the control of her boyfriend and was incapable of understanding the effect his behavior had had on her children. In re J.R., 250 N.C. App. 195, 791 S.E.2d 922 (2016).
Failure to Make Findings of Fact Regarding Waiver of Counsel. - Although it appeared that the trial court's inquiry was adequate to determine whether the mother knowingly and voluntarily waived her right to counsel during the permanency planning hearing, the trial court failed to make findings of fact sufficient to show that the waiver was knowing and voluntary as the permanency planning order was devoid of any findings regarding the mother's waiver of counsel and decision to proceed pro se. In re J.M., - N.C. App. - , - S.E.2d - (Sept. 1, 2020).
Trial Court Erred by Equating Request for New Counsel With Waiver of Court-Appointed Counsel. - In a child dependency proceeding, a new trial was required since the trial court erred by equating the father's request for a new counsel with a waiver of
court-appointed counsel, and requiring the father to proceed to trial pro se. In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004).
Section G.S. 7B-602(b) Analysis Compared to G.S. 7B-1101 Analysis for Appointment
of Guardian Ad Litem. - Court saw no reason why the analysis of the issues arising under G.S. 7B-1101 were not applicable to the same issues arising under
G.S. 7B-602(b) with respect to whether to appoint a guardian ad litem; the G.S. 7B-1101 analysis centered on the intertwining of the parent's condition and
the child's neglect. In re C.B., 171 N.C. App. 341, 614 S.E.2d 579 (2005).
Counsel Not Shown to Be Ineffective. - Although father had a right to effective counsel under G.S. 7B-602(a) in a termination of parental rights proceeding,
he failed to show how his attorney's tardiness caused him to be denied a fair hearing, failed to identify what direct testimony was missed, and did not explain how counsel's failure to hear the testimony prejudiced father. In re
L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007), review denied, 361 N.C. 354, 646 S.E.2d 114 (2007).
Failure to Appoint Guardian Ad Litem. - Trial court erroneously failed to appoint a guardian ad litem for the mother as required by G.S. 7B-602 where the mother had mental health issues, a depressive disorder and borderline personality disorder, which resulted in the daughter's dependency. In re L.M.C., 170 N.C. App. 676, 613 S.E.2d 256 (2005).
G.S. 7B-602 required that a guardian ad litem (GAL) be appointed if the juvenile was alleged to be "dependent" and the parent was incapable as a result of mental illness of providing the proper care and supervision of the juvenile; G.S. 7B-602 was not limited to termination cases, and the trial court's failure to sua sponte appoint a GAL for the mother in a dependency case was error where the trial court was on notice of the mother's alleged mental conditions, and made references to and questioned the mother's mental condition in several orders. In re D.D.Y., 171 N.C. App. 347, 621 S.E.2d 15 (2005).
Because a petition did not mention any developmental disabilities or limitations and the mother's brief cited nothing in the record indicating that her inability to care for her children without constant assistance was due to her mental health issues, the court did not err in failing to appoint a guardian ad litem. In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006), aff'd, cert. dismissed, in part, 362 N.C. 172, 655 S.E.2d 712 (2008), In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).
In a neglect and dependency proceeding, the trial court erred in not appointing a guardian ad litem pursuant to G.S. 7B-602(b)(1) for a mother because she
was found to be suffering from mental illness, including depression and a borderline personality disorder. In re T.T., 182 N.C. App. 145, 641 S.E.2d 344 (2007).
G.S. 7B-602(b)(1) did not require the appointment of a guardian ad litem for the father as the dependency allegations did not focus on the father's incapacity;
rather, the majority of the dependency allegations focused on the father's alleged abuse and neglect as exhibited by his noncompliance with court-ordered domestic violence counseling and a pattern of abuse against his wife and
other children. In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004).
Mother Was Not Entitled to Appointment of Guardian Ad Litem During Termination of Parental Rights Action. - Mother was not entitled to the appointment of a guardian ad litem in an action to terminate her parental rights; the mother's sparse references to her need to counseling and drug treatment did not rise to the level of being so intertwined with the neglect of her children and to be virtually inseparable and while the Department of Social Services recommended counseling, there was no significant evidence in the record to suggest that the mother's parental rights were terminated due to any mental illness or substance abuse. In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005).
Appointment of a guardian ad litem was not compelled because the mother's mental illness was not a central factor in the trial court findings. In re J.M.W., 179 N.C. App. 788, 635 S.E.2d 916 (2006).
Allegations of Parental Condition Triggers Appointment of Guardian Ad Litem. - Department of social services "alleged" that the mother's dependency and mental illness were the cause of her child's problems so, even without allegations of specific facts,
it was error under G.S. 7B-602 for the lower court not to appoint a guardian ad litem for her before it adjudicated whether her child
was dependent and neglected under G.S. 7B-101(9), (15). In re C.B., 171 N.C. App. 341, 614 S.E.2d 579 (2005).
Adoption as a Consequence of Neglect Proceedings. - Where the signing of the adoption consent forms occurred following and as a consequence of a neglect proceeding which the department of social services initiated, the signing of the papers directly related
to the neglect proceedings and respondent was entitled to counsel when she signed the forms. In re Maynard, 116 N.C. App. 616, 448 S.E.2d 871 (1994).
Delay in Appointment of Guardian Ad Litem Did Not Cause Prejudice as Mother Was Adequately Represented at Critical Stages. - Because the mother was adequately represented by the guardian ad litem at every critical stage of the case, the one and a half
month delay in appointing a guardian ad litem did not cause the mother prejudice. In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004).
Failure to Hold Hearing on Parent's Competency. - Trial court considering the custody and visitation of an abused and neglected child abused the court's discretion after the court failed to exercise the court's discretion to hold a hearing on the competency of a respondent parent under G.S. 7B-602(c), and where it improperly ceded complete discretion to determine visitation with the child. In re M.H.B., 192 N.C. App. 258, 664 S.E.2d 583 (2008).
Trial court erred in allowing a mother to waive counsel and represent herself at the hearing on the petition to terminate her parental rights because it did not appear from the record that the trial court determined determine whether the guardian ad litem
would function in a substitutive capacity or play a role of assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152 (2012).
Right to Counsel Denied. - Because an action was not pending in juvenile court at the time of the permanent custody order, the mother did not have the benefit of her right to counsel afforded by G.S. 7B-602(a).
In re N.G.H., 252 N.C. App. 426, 837 S.E.2d 724 (2017).
Applied in In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010); In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016).
Cited in In re O.C., 171 N.C. App. 457, 615 S.E.2d 391 (2005), cert. denied, - N.C. - , 623 S.E.2d 587 (2005); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005); In re
L.W., 175 N.C. App. 387, 623 S.E.2d 626 (2006); In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); In re D.H., 177 N.C. App. 700, 629 S.E.2d
920 (2006); In re H.D.F., 197 N.C. App. 480, 677 S.E.2d 877 (2009).
§ 7B-603. Payment of court-appointed attorney or guardian ad litem.
- An attorney or guardian ad litem appointed pursuant to G.S. 7B-601 shall be paid a reasonable fee fixed by the court or by direct engagement for specialized guardian ad litem services through the Administrative Office of the Courts.
- The court may require payment of the fee for an attorney or guardian ad litem appointed pursuant to G.S. 7B-601 from a person other than the juvenile as provided in G.S. 7A-450.1, 7A-450.2, and 7A-450.3. In no event shall the parent or guardian be required to pay the fees for a court-appointed attorney or guardian ad litem in an abuse, neglect, or dependency proceeding unless the juvenile has been adjudicated to be abused, neglected, or dependent or, in a proceeding to terminate parental rights, unless the parent's rights have been terminated. If the party is ordered to reimburse the State for attorney or guardian ad litem fees and fails to comply with the order at the time of disposition, the court shall file a judgment against the party for the amount due the State.
- An attorney or guardian ad litem appointed pursuant to G.S. 7B-602 or pursuant to any other provision of the Juvenile Code for which the Office of Indigent Defense Services is responsible for providing counsel shall be paid a reasonable fee in accordance with rules adopted by the Office of Indigent Defense Services.
- The court may require payment of the fee for an attorney appointed pursuant to G.S. 7B-602 or G.S. 7B-1101.1 from the respondent. In no event shall the respondent be required to pay the fees for a court-appointed attorney in an abuse, neglect, or dependency proceeding unless the juvenile has been adjudicated to be abused, neglected, or dependent or, in a proceeding to terminate parental rights, unless the respondent's rights have been terminated. At the dispositional hearing or other appropriate hearing, the court shall make a determination whether the respondent should be held responsible for reimbursing the State for the respondent's attorneys' fees. This determination shall include the respondent's financial ability to pay.
- Repealed by Session Laws 2005-254, s. 2, effective October 1, 2005, and applicable to the appointment of counsel on or after that date.
If the court determines that the respondent is responsible for reimbursing the State for the respondent's attorneys' fees, the court shall so order. If the respondent does not comply with the order at the time of disposition, the court shall file a judgment against the respondent for the amount due the State.
History
(1979, c. 815, s. 1; 1983, c. 726, ss. 2, 3; 1987 (Reg. Sess., 1988), c. 1090, s. 6; 1991, c. 575, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2000-144, s. 17; 2005-254, s. 2., 2014-115, s. 21; 2017-158, s. 25.)
Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Effect of Amendments. - Session Laws 2014-115, s. 21, effective August 11, 2014, inserted "or guardian ad litem" in subsection (b).
Session Laws 2017-158, s. 25, effective July 21, 2017, substituted "G.S. 7B-602 or G.S. 7B-1101.1" for "G.S. 7B-602 or G.S. 7B-1101"
in the first sentence of subsection (b1).
CASE NOTES
Guardian's Physical Presence at Termination Hearing. - While the presence of the minor children's nonattorney guardian ad litem (GAL) volunteer at a termination of parental rights (TPR) hearing was preferable, the nonlawyer volunteer's attendance was
not mandatory because, given the role of the attorney advocate to assist the GAL, the general assembly did not intend by the use of the word "represent" in G.S. 7B-1108(b) to obligate the volunteer GAL to appear in court during the TPR hearing unless the attorney advocate or the trial court deemed the GAL's presence necessary to protect the minor's best interests; G.S. 7B-1108 did not impose on the GAL volunteer a special duty to "represent" a juvenile beyond what G.S. 7B-601 required of a GAL as an appointed member of the GAL program.
The GAL program performed the duties listed in G.S. 7B-601(a). In re J.H.K., 365 N.C. 171, 711 S.E.2d 118 (2011).
ARTICLE 7. Discovery.
Sec.
§ 7B-700. Sharing of information; discovery.
- Sharing of Information. - A department of social services is authorized to share with any other party information relevant to the subject matter of an action pending under this Subchapter. However, this subsection does not authorize the disclosure of the identity of the reporter or any uniquely identifying information that would lead to the discovery of the reporter's identity in accordance with G.S. 7B-302 or the identity of any other person where the agency making the information available determines that the disclosure would be likely to endanger the life or safety of the person.
- Local Rules. - The chief district court judge may adopt local rules or enter an administrative order addressing the sharing of information among parties and the use of discovery.
- Discovery. - Any party may file a motion for discovery. The motion shall contain a specific description of the information sought and a statement that the requesting party has made a reasonable effort to obtain the information pursuant to subsections (a) and (b) of this section or that the information cannot be obtained pursuant to subsections (a) and (b) of this section. The motion shall be served upon all parties pursuant to G.S. 1A-1, Rule 5. The motion shall be heard and ruled upon within 10 business days of the filing of the motion. The court may grant, restrict, defer, or deny the relief requested. Any order shall avoid unnecessary delay of the hearing, establish expedited deadlines for completion, and conform to G.S. 7B-803.
- Protective Order. - Any party served with a motion for discovery may request that the discovery be denied, restricted, or deferred and shall submit, for in camera inspection, the document, information, or materials the party seeks to protect. If the court enters any order granting relief, copies of the documents, information, or materials submitted in camera shall be preserved for appellate review in the event of an appeal.
- Redisclosure. - Information obtained through discovery or sharing of information under this section may not be redisclosed if the redisclosure is prohibited by State or federal law.
- Guardian Ad Litem. - Unless provided otherwise by local rules, information or reports obtained by the guardian ad litem pursuant to G.S. 7B-601 are not subject to disclosure pursuant to this subsection, except that reports and records shall be shared with all parties before submission to the court.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2009-311, s. 4.)
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Effect of Amendments. - Session Laws 2009-311, s. 4, effective October 1, 2009, rewrote the section.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Relation to Civil Procedure Rules. - Trial court did not err by disallowing a deposition under the Rules of Civil Procedure; as the Juvenile Code provided for discovery, specifically including depositions, the Rules of Civil Procedure did not apply here. The trial court merely instructed the father to cancel the noticed civil deposition and affirmed that he could request a deposition later in the juvenile proceeding. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).
Denial to Interview Child Was Not Abuse of Discretion. - Trial court did not err by denying a mother's motion to interview her son for whom a proceeding was initiated against the mother for termination of her parental rights because, as evidenced by the
multiple findings of fact contained within multiple court orders, any contact the mother had with the child was disruptive to his own therapeutic progress and it was clear from the record that the trial court was concerned with
the mother's behavior in attempting to learn of the child's whereabouts, particularly since the mother abducted the child from his school bus stop while he was in foster care. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).
Denial of Continuance Was Not Abuse of Discretion. - Trial court did not commit an abuse of discretion by applying an administrative order governing all discovery in abuse, neglect, and dependency proceedings and denying the parents' motions to continue
because the gravamen of the problem fell with the inability of the attorneys to make time to review the records in accordance with the administrative order. In re J.S., 182 N.C. App. 79, 641 S.E.2d 395 (2007).
Discovery Not Denied. - Trial court did not refuse to allow the father to depose the social worker; the trial court instructed the father to first avail himself of the information sharing provisions under the statute, while explicitly leaving open the possibility that he could later file a motion for discovery requesting a deposition. As the trial court did not exercise its discretion under the statute to deny a discovery request, it could not have abused its discretion. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).
ARTICLE 8. Hearing Procedures.
Sec.
§ 7B-800. Amendment of petition.
The court, in its discretion, may permit a petition to be amended. The court shall direct the manner in which an amended petition shall be served and the time allowed for a party to prepare after the petition has been amended.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2010-90, s. 11.)
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Effect of Amendments. - Session Laws 2010-90, s. 11, effective July 11, 2010, rewrote the first sentence, and added the second sentence.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For article, "The Nature of Abuse: Clerical v. Material Error: Where Does North Carolina Stand?," see 32 N.C. Cent. L. Rev. 226 (2010).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Allowing Amendment Discretionary. - Where petition sufficiently alleged the offense of larceny, and amendment in no way changed the nature of the offense, but simply identified more specifically the owner of the property allegedly stolen, allowing the
amendment under these circumstances was within the sound discretion of the court. In re Jones, 11 N.C. App. 437, 181 S.E.2d 162, appeal dismissed, 279 N.C. 616,
184 S.E.2d 267 (1971), decided under former G.S. 7A-285.
Improper Petition Amendment. - Trial court erred in adjudicating a child to be a neglected juvenile where the petition alleged only that the child was a dependent juvenile, the trial court had essentially amended the nature of the juvenile petition by allowing the department to proceed on a claim of neglect, and as a result the mother had no notice of the claim of neglect. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).
Trial court's decision to allow the Department of Social Services to amend its petition to add sexual abuse allegations against a second child was erroneous because it changed the nature of the conditions relied upon in the original petition. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).
Because the trial court erred in allowing the county department of social services to amend the petitions to terminate a mother's parental rights to conform to the evidence, the original petitions failed to put the mother on notice that
G.S. 7B-1111(a)(2) would be a possible ground to support termination, and G.S. 1A-1,
N.C. R. Civ. P. 15(b) did not apply, the termination order was reversed. In re B.L.H., 190 N.C. App. 142, 660 S.E.2d 255 (2008), aff'd, 362 N.C. 674, 669 S.E.2d 320 (2008).
Construction. - The North Carolina Supreme Court construed former G.S. 7A-627 (see now this section) to permit a juvenile petition
to be amended only if the amended petition does not charge the juvenile with a different offense. In re Davis, 114 N.C. App. 253, 441 S.E.2d 696 (1994).
Petition Could Be Amended. - Trial court did not lack subject matter jurisdiction over the juvenile petition that the caseworker filed in the termination of parental rights case regarding the father even though the caseworker did not sign the juvenile petition; the caseworker verified the petition, which was sufficient to confer jurisdiction, and in any event, would have been allowed to amend the petition by signing it if not signing it was a problem. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).
Amendment to a juvenile petition alleging abuse, neglect, and dependency to add allegations of sexual abuse did not change the nature of the conditions upon which the petition was based in violation of G.S. 7B-800,
because the amendment did not change the nature of the condition DSS had already alleged, abuse under G.S. 7B-101(1). In re M.G., 363 N.C. 570,
681 S.E.2d 290 (Aug. 28, 2009).
§ 7B-800.1. Pre-adjudication hearing.
-
Prior to the adjudicatory hearing, the court shall consider the following:
- Retention or release of provisional counsel.
- Identification of the parties to the proceeding.
- Whether paternity has been established or efforts made to establish paternity, including the identity and location of any missing parent.
- Whether relatives, parents, or other persons with legal custody of a sibling of the juvenile have been identified and notified as potential resources for placement or support.
- Whether all summons, service of process, and notice requirements have been met.
- Whether the petition has been properly verified and invokes jurisdiction.
- Any pretrial motions, including (i) appointment of a guardian ad litem in accordance with G.S. 7B-602, (ii) discovery motions in accordance with G.S. 7B-700, (iii) amendment of the petition in accordance with G.S. 7B-800, or (iv) any motion for a continuance of the adjudicatory hearing in accordance with G.S. 7B-803.
- Any other issue that can be properly addressed as a preliminary matter.
- The pre-adjudication hearing may be combined with a hearing on the need for nonsecure custody or any pretrial hearing or conducted in accordance with local rules.
- The parties may enter stipulations in accordance with G.S. 7B-807 or enter a consent order in accordance with G.S. 7B-801.
History
(2013-129, s. 18; 2014-16, s. 1; 2015-135, s. 2.3; 2015-136, s. 8.)
Editor's Note. - Session Laws 2013-129, s. 41, makes this section effective October 1, 2013, and applicable to actions filed or pending on or after that date.
Amendments to this section by Session Laws 2015-135, s. 2.3, and Session Laws 2015-136, s. 8, were identical, substituting "relatives, parents, or other persons with legal custody of a sibling of the juvenile" for "relatives" in subdivision (a)(4).
Session Laws 2015-135, s. 1.1, provides: "This act shall be known and may be cited as the 'Foster Care Family Act.' "
Session Laws 2015-136, s. 18, made the amendment to subdivision (a)(4) of this section by Session Laws 2015-136, s. 8, applicable to actions filed or pending on or after October 1, 2015.
Effect of Amendments. - Session Laws 2014-16, s. 1, effective October 1, 2014, added subdivision (a)(5a).
Session Laws 2015-135, s. 2.3, effective October 1, 2015, substituted "relatives, parents, or other persons with legal custody of a sibling of the juvenile" for "relatives" in subdivision (a)(4).
Session Laws 2015-136, s. 8, effective October 1, 2015, substituted "relatives, parents, or other persons with legal custody of a sibling of the juvenile" for "relatives" in subdivision (a)(4). For applicability, see editor's note.
§ 7B-801. Hearing.
-
At any hearing authorized or required under this Subchapter, the court in its discretion shall determine whether the hearing or any part of the hearing shall be closed to the public. In determining whether to close the hearing or any part of the hearing,
the court shall consider the circumstances of the case, including, but not limited to, the following factors:
- The nature of the allegations against the juvenile's parent, guardian, custodian or caretaker;
- The age and maturity of the juvenile;
- The benefit to the juvenile of confidentiality;
- The benefit to the juvenile of an open hearing; and
- The extent to which the confidentiality afforded the juvenile's record pursuant to G.S. 132-1.4(l) and G.S. 7B-2901 will be compromised by an open hearing.
- No hearing or part of a hearing shall be closed by the court if the juvenile requests that it remain open.
-
Nothing in this Subchapter precludes the court in an abuse, neglect, or dependency proceeding from entering a consent adjudication order, disposition order, review order, or permanency planning order when each of the following apply:
- All parties are present or represented by counsel, who is present and authorized to consent.
- The juvenile is represented by counsel.
- The court makes sufficient findings of fact.
- The adjudicatory hearing shall be held in the district at such time and place as the chief district court judge shall designate, but no later than 60 days from the filing of the petition unless the judge pursuant to G.S. 7B-803 orders that it be held at a later time.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1998-229, ss. 5, 22; 1999-456, s. 60; 2011-295, s. 5.)
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
For article, "Juvenile Justice in Transition - A New Juvenile Code for North Carolina," see 16 Wake Forest L. Rev. 1 (1980).
CASE NOTES
Editor's Note. -
Some of the following cases were decided prior to the enactment of this Chapter. Some of the following cases were decided under former G.S. 7B-902, which was similar to provisions currently found in subsection (b1) of this section.
Exclusion of Public. - It has never been the practice in juvenile proceedings wholly to exclude parents, relatives or friends, or to refuse juveniles the benefit of counsel. Even so, such proceedings are usually conducted without admitting the public
generally. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd sub nom. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).
Prejudice Not Shown After Continuance. - Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by
G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as:
(1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents
requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c); (4) the dispositional
order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased until the dispositional
hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
It is a discretionary matter with the trial judge whether the general public (which includes newspaper reporters) is excluded from a juvenile hearing. In re Potts, 14 N.C. App. 387, 188 S.E.2d 643,
cert. denied, 281 N.C. 622, 190 S.E.2d 471 (1972).
Failure to Show Delay was Prejudicial. - Failure to hold a timely hearing as required under G.S. 7B-801 and G.S. 7B-803 was not erroneous where respondents failed to show prejudice as a result of any delay; at the adjudication and dispositional stage it was the status of the juvenile that was at issue, and because parental status was not at issue, it was more difficult for respondents to show prejudice. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007).
As for delays in a child neglect case based on various continuances, most of the delay was attributed to respondent-parents' search for an expert witness, and their request for a special trial setting, and not as they argued, due to the trial court; any
assignment of error based on G.S. 7B-801(c) and G.S. 7B-803 was overruled. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).
Delay Not Justified by Continuances. - Trial court, which continued a neglect and dependency case seven times due to a crowded docket, three times due to the absence of parties, and four times due to the absence of attorneys, did not abuse its discretion
when it continued the case due to an attorney's medical needs and again due to a death in the mother's family, as these situations might have been considered extraordinary circumstances justifying a continuance. However, a new
trial was required because the court abused its discretion by continuing the case the other times in a manner inconsistent with G.S. 7B-803;
therefore, the court's violations of the time limits set out in G.S. 7B-801(c) and G.S. 7B-906(a) (repealed, see now G.S. 7B-906.1) were not justified, and the mother and the fathers of her two children were prejudiced by the delays. In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).
Authority to Adjudicate. - Trial court had authority or jurisdiction to hear the case because the adjudicatory hearing was commenced within the 60-day period after the Department of Social Services filed its neglect petition. In re T.M.,
180 N.C. App. 539, 638 S.E.2d 236 (2006).
Default. - Just as a default judgment or judgment on the pleadings is inappropriate in a proceeding involving termination of parental rights, it is equally inappropriate in an adjudication of neglect. Thrift v. Buncombe County Dep't of Soc. Servs.,
137 N.C. App. 559, 528 S.E.2d 394 (2000), decided under former G.S. 7B-902.
Practice and Procedure. - Although it is proper for a court to enter a consent order in an abuse, neglect, or dependency proceeding, such an order may be entered only when all parties are present, the juvenile is represented by counsel, and all other
parties are either represented by counsel or have waived counsel, and sufficient findings of fact are made by the court. Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314
(2011), decided under former G.S. 7B-902.
Absence of Parents. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000), decided under former G.S. 7B-902.
In the absence of the father's presence, the mother's consent to the adjudication of neglect as to their daughter was insufficient to dispense with the requirement of an adjudicatory hearing. In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002), decided under former G.S. 7B-902.
Trial court erred in entering a consent judgment finding that a mother had neglected her children; pursuant to G.S. 7B-902, consent by the father of a child
was insufficient to bind the mother when the mother was not present at the hearing and did not consent to the judgment, and testimony by a social worker did not meet the clear and convincing evidence requirement of G.S. 7B-805.
In re J.R., 163 N.C. App. 201, 592 S.E.2d 746 (2004), decided under former G.S. 7B-902.
Consent Adjudication. - Trial court erred in adjudicating children to be neglected and dependent juveniles because the adjudication and disposition order did not meet the requirements of a valid consent adjudication order as the record contained no evidence that the parties had reached a consent agreement or that the respondent parent had consented to the parent's children being adjudicated as neglected and dependent. In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016).
Trial court's order adjudicating a child to be neglected was not a valid consent adjudication order under G.S. 7B-801(b1) as it simply contained the parties'
stipulation to certain facts. In re R.L.G., 260 N.C. App. 70, 816 S.E.2d 914 (2018).
Adjudication Order Was A Nullity. - Adjudication order finding a child was abused and signed by the chief district court judge was a nullity because the parties did not and could not have stipulated to the final conclusion, and no other evidence beyond the parties' stipulation was presented at the adjudication hearing; the retired judge was required to make findings of fact, adjudicated and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Cited in In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003), appeal dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017).
§ 7B-802. Conduct of hearing.
The adjudicatory hearing shall be a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in a petition. In the adjudicatory hearing, the court shall protect the rights of the juvenile and the juvenile's parent to assure due process of law.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60.)
Legal Periodicals. - For note on juries in the juvenile justice system, see 48 N.C.L. Rev. 666 (1970).
For comment on due process in juvenile proceedings, see 3 N.C. Cent. L.J. 255 (1972).
For survey of 1972 case law on the right to counsel for the "undisciplined child," see 51 N.C.L. Rev. 1023 (1973).
For article on rights and interests of parent, child, family and state, see 4 Campbell L. Rev. 85 (1981).
CASE NOTES
I. GENERAL CONSIDERATION.
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Juvenile Proceedings Are Designed to Foster Individualized Disposition. - Juvenile proceedings are something less than a full blown determination of criminality. They are designed to foster individualized disposition of juvenile offenders under protection
of the courts in accordance with constitutional safeguards. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869 (1975), rev'd on other grounds, 291 N.C. 640,
231 S.E.2d 614 (1977).
Juvenile proceedings are not criminal prosecutions. Nor is a finding of delinquency in a juvenile proceeding synonymous with conviction of a crime. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969),
aff'd sub nom., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); In re Jones, 11 N.C. App. 437, 181 S.E.2d 162, appeal dismissed, 279 N.C. 616,
184 S.E.2d 267 (1971); State v. Rush, 13 N.C. App. 539, 186 S.E.2d 595 (1972); In re Drakeford, 32 N.C. App. 113, 230 S.E.2d 779 (1977).
But Such Proceedings Are Criminal for Purposes of U.S. Const., Amend. V. - Juvenile proceedings must be regarded as "criminal" for purposes of U.S. Const., Amend. V, the privilege against self-incrimination. State v. Rush, 13 N.C. App. 539, 186 S.E.2d 595 (1972).
Juvenile delinquency hearings place juveniles in danger of confinement, and, therefore, the proceedings are to be treated as criminal proceedings, and conducted with due process in accord with constitutional safeguards of U.S. Const., Amend. V. In re
Chavis, 31 N.C. App. 579, 230 S.E.2d 198 (1976), cert. denied, 291 N.C. 711, 232 S.E.2d 203 (1977).
And Double Jeopardy Rule Applies. - Although distinctions between juvenile proceedings and criminal prosecutions still exist, they are sufficiently similar in nature that the double jeopardy provisions of the United States and North Carolina Constitutions
are applicable to them. Accordingly, jeopardy attaches to the initial petition once an adjudicatory hearing on the merits is held. In re Drakeford, 32 N.C. App. 113,
230 S.E.2d 779 (1977).
Duty of District Court. - It is the constant duty of the district court to give each child subject to its jurisdiction such oversight and control as will be conducive to the welfare of the child and to the best interest of the State, and to ensure that
the juvenile be carefully afforded all constitutional safeguards at every stage of the hearings. In re Eldridge, 9 N.C. App. 723, 177 S.E.2d 313 (1970).
Trial Judge May Question Witnesses. - The trial judge in a juvenile delinquency proceeding may question the witnesses to elicit relevant testimony and to aid in arriving at the truth. State v. Rush, 13 N.C. App. 539, 186 S.E.2d 595 (1972).
And May Give Opinion on Evidence. - The provisions of former G.S. 1-180 prohibiting a court from giving an opinion on the evidence
do not apply in a juvenile delinquency proceeding where no jury is present. State v. Rush, 13 N.C. App. 539, 186 S.E.2d 595 (1972).
Procedural Requirements. - Nothing in G.S. 7B-807(a) allowed the trial court to hold a ruling on an allegation in a petition alleging abuse, neglect, or dependency in abeyance, as the trial court attempted to do in this instance; when a trial court was required to adjudicate allegations of abuse, neglect, or dependency, it must either adjudicate the juvenile as abused, neglected, or dependent if the allegations were proven by clear and convincing evidence or dismiss the allegation if the necessary evidentiary showing was not made. In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010).
trial court erred in adjudicating a child as dependent and placing her in the custody of the a social service agency because, while the trial court acknowledged that the father's paternity had been established, it made no findings and the agency made no allegations and presented no evidence that the father, although a minor, was unable to provide or arrange for the care and supervision of the child. In re V.B., 239 N.C. App. 340, 768 S.E.2d 867 (2015).
Trial court erred in adjudicating children to be neglected and dependent juveniles because the adjudication and disposition order did not result from a proper adjudicatory hearing as the adjudication was supported solely by two written reports submitted by a county department of social services (DSS) at the hearing. As a result, the trial court's findings of fact consisted of recitations from the facts alleged in the petitions and wholesale incorporation of reports prepared by the DSS. In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016).
Trial court lacked subject matter jurisdiction after periodic judicial reviews were discontinued to adjudicate juveniles as abused, neglected, or dependent when a director of social services (DSS) sought court action based on a new report of abuse, neglect,
or dependency without the prior filing of a verified petition by the DSS. Moreover, the trial court could not proceed directly to a dispositional hearing without first conducting an adjudicatory hearing and actually adjudicating
the juveniles as abused, neglected, or dependent. In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
Standards for Evaluation of Evidence. - The North Carolina Juvenile Code gives defendants in juvenile adjudication hearings, with certain exceptions, all rights afforded adult offenders, and thus the juvenile respondents are entitled to have the evidence presented in their adjudicatory hearing evaluated by the same standards as apply in criminal proceedings against adults. In re Meaut, 51 N.C. App. 153, 275 S.E.2d 200 (1981).
A juvenile respondent is entitled to have evidence evaluated by the same standards as apply in criminal proceedings against adults. In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904 (1985); In re
Howett, 76 N.C. App. 142, 331 S.E.2d 701 (1985); In re Bass, 77 N.C. App. 110, 334 S.E.2d 779 (1985).
When a parent is absent from a termination proceeding and the trial court preserves the adversarial nature of the proceeding by allowing the parent's counsel to cross examine witnesses, with the questions and answers being recorded, the parent must demonstrate
some actual prejudice in order to prevail upon appeal. In re Murphy, 105 N.C. App. 651, 414 S.E.2d 396, aff'd, 332 N.C. 663, 422 S.E.2d 577
(1992).
Absence of parent. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by
clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000).
A motion to dismiss a juvenile petition is recognized by North Carolina statutory and case law. In re Grubb, 103 N.C. App. 452, 405 S.E.2d 797 (1991); In re J.A., 103 N.C. App. 720, 407 S.E.2d 873 (1991).
In order to withstand a motion to dismiss the charges contained in a juvenile petition, there must be substantial evidence of each of the material elements of the offense charged; the evidence must be considered in the light most favorable to the state,
and the state is entitled to every reasonable inference of fact which may be drawn from the evidence. In re Bass, 77 N.C. App. 110, 334 S.E.2d 779 (1985).
Restitution Order Held Unauthorized. - Where juvenile was not petitioned or adjudicated for the delinquent act of damaging the personal property of a certain victim, the court was without authority to order him to pay any restitution to her. In re Hull,
89 N.C. App. 138, 365 S.E.2d 221 (1988).
Time Period for Adjudication of Neglect. - Relevant time period for adjudication of neglect was from birth to the filing of the petition. In re A.B., 179 N.C. App. 605, 635 S.E.2d 11 (2006).
Applied in In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008).
Cited in In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002); In re A.W., 164 N.C. App. 593, 596 S.E.2d 294 (2004); In re L.T.R., 181 N.C. App. 376, 639 S.E.2d 122 (2007); In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007); In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017); In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017).
II. DUE PROCESS RIGHTS.
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Juveniles Are Entitled to Constitutional Safeguards. - A juvenile cited under a petition to appear for an inquiry into his alleged delinquency is entitled to the constitutional safeguards of due process and fairness. In re Jones, 11 N.C. App. 437, 181 S.E.2d 162, appeal dismissed, 279 N.C. 616, 184 S.E.2d 267 (1971).
A juvenile is entitled to certain constitutional safeguards and fairness. State v. Rush, 13 N.C. App. 539, 186 S.E.2d 595 (1972).
Juveniles in delinquency proceedings are entitled to constitutional safeguards similar to those afforded adult criminal defendants. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869 (1975), rev'd on
other grounds, 291 N.C. 640, 231 S.E.2d 614 (1977).
Scope of juvenile due process is not as extensive as that incident to adversary adjudication for adult criminal defendants. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869 (1975), rev'd on other
grounds, 291 N.C. 640, 231 S.E.2d 614 (1977).
Requirements of Due Process. - So long as proceedings in the juvenile court meet the requirements of due process, they are constitutionally sound and must be upheld. This means that: (1) The basic requirements of due process and fairness must be satisfied
in a juvenile court adjudication of delinquency. (2) U.S. Const., Amend. XIV applies to prohibit the use of a coerced confession of a juvenile. (3) Notice must be given in juvenile proceedings which would be deemed constitutionally
adequate in a civil or criminal proceeding; that is, notice must be given the juvenile and his parents sufficiently in advance of scheduled court proceedings to afford them reasonable opportunity to prepare, and the notice
must set forth the alleged misconduct with particularity. (4) In juvenile proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his
parents must be notified of the child's right to counsel and, if unable to afford counsel, to the appointment of same. (5) Juvenile proceedings to determine delinquency, as a result of which the juvenile may be committed to
a State institution, must be regarded as "criminal" for purposes of U.S. Const., Amend. V, the privilege against self-incrimination. The privilege applies in juvenile proceedings the same as in adult criminal cases. In re Burrus,
275 N.C. 517, 169 S.E.2d 879 (1969), aff'd sub nom. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).
Due process for a juvenile includes written notice of specific charges in advance of hearing; notification to child and parent of the right to counsel and that, if necessary, counsel will be appointed; the privilege against self-incrimination; proof of
the offense charged beyond a reasonable doubt; and determination of delinquency based on sworn testimony subject to cross-examination in the absence of a valid confession. In re Arthur, 27 N.C. App. 227, 218 S.E.2d 869 (1975), rev'd on other grounds, 291 N.C. 640, 231 S.E.2d 614 (1977).
Due process safeguards include notice of the charge or charges upon which the petition is based. In re Jones, 11 N.C. App. 437, 181 S.E.2d 162, appeal dismissed, 279 N.C. 616,
184 S.E.2d 267 (1971).
Counsel Is Required in Delinquency Proceedings. - The due process clause of U.S. Const., Amend. XIV requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed,
the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. In re Garcia,
9 N.C. App. 691, 177 S.E.2d 461 (1970).
But counsel is not constitutionally required at the hearing on an undisciplined child petition. In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).
And This Distinction Does Not Deny Equal Protection. - Allowing a child to be adjudged undisciplined and placed on probation without benefit of counsel, while at the same time requiring counsel before a child may be adjudged delinquent, does not deny
equal protection of the laws to the undisciplined child. In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).
Trial by jury in the juvenile court's adjudicative stage is not a constitutional requirement. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).
Absent a statute providing for a jury trial, it is almost universally held that in juvenile court delinquency proceedings the alleged delinquent has no right under the pertinent state or federal Constitution to demand that the issue of his delinquency
be determined by a jury. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd sub nom. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).
Consideration of Prior Juvenile Court Involvement. - Because the prior juvenile court involvement and the civil custody order were among the matters alleged in the petition, the trial court did not violate the father's due process rights by considering this evidence. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).
Dual Role as Judge and Prosecutor Is Unconstitutional. - Due process rights of a juvenile were violated where the trial judge examined the witnesses for the State because of the absence of the district attorney or other counsel to represent the State. In re Thomas, 45 N.C. App. 525, 263 S.E.2d 355 (1980).
The presiding judge in a juvenile proceeding that could lead to detention should not assume the role of prosecuting attorney where the juvenile is represented by counsel and the hearing is adversary in nature. Such procedure would clearly violate due
process in adult criminal prosecutions, nor would a dual role of judge and prosecutor measure up to the essentials of due process and fair treatment in juvenile proceedings where detention could result. In re Thomas,
45 N.C. App. 525, 263 S.E.2d 355 (1980).
Limitation on Right to Confront Witness. - Although former G.S. 7A-631 guaranteed respondent the right to confront and cross-examine witnesses, the right to confront witnesses in civil cases is subject to "due limitations." In re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983).
Where excluded party's presence during testimony might intimidate witness and influence his answers, due to that party's position of authority over the testifying witness, any right under this Article to confront the witnesses is properly limited. In
re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983).
Applicability of Former G.S. 7A-631 to Hearing After Its Repeal. - Former G.S. 7A-631, which provided that the trial court in an adjudicatory hearing should protect a parent's privilege against self-incrimination, was repealed effective July 1, 1999;
thus, the statute did not protect a child's mother's right against self-incrimination in a juvenile abuse and neglect proceeding. In re Pittman, 149 N.C. App. 756, 561
S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).
§ 7B-803. Continuances.
The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile. Resolution of a pending criminal charge against a respondent arising out of the same transaction or occurrence as the juvenile petition shall not be the sole extraordinary circumstance for granting a continuance.
History
(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 9; 1998-202, s. 6; 1999-456, s. 60; 2013-129, s. 19.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 19, which added the last sentence, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2013-129, s. 19, effective October 1, 2013, added the last sentence in the undesignated provisions of this section. For applicability, see editor's note.
CASE NOTES
Denial of Continuance Proper. - Trial court properly denied mother's request for a continuance in termination of parental rights case where nothing in the record indicated that the court requested or needed additional information in the best interests of the children, that more time was needed for expeditious discovery, that the mother did not receive sufficient notice of the hearing, that extraordinary circumstances necessitated a continuance in the case, and that the mother's absence from the hearing was voluntary or due to her own negligence in failing to obtain adequate transportation. In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 237 (2002).
Because the trial court had already allowed a biological father one continuance to allow him to better prepare, and because any lack of preparation in the first place was caused by the father's knowing failure to communicate with county health and human services, the trial court did not abuse its discretion by denying his motion to continue. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Trial court did not abuse its discretion by denying a biological father's motion to continue because the biological father failed to meet his burden of demonstrating that his recent incarceration constituted an extraordinary circumstance that would justify a continuance, as his inability to adequately prepare for trial was due to his own knowing inaction in the days and months leading up to the hearing. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Trial court properly determined that a mother was not entitled to a continuance on the ground that she was awaiting trial for criminal charges, and the mother failed to demonstrate any violation of her constitutional rights in the denial of her motion, because the charges against the mother did not arise from the "transaction or occurrence" that led to the juvenile petition but arose after the petition; the trial court provided adequate safeguards to protect her due process rights. In re L.G.A., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).
Trial court properly determined that a mother was not entitled to a continuance on the ground that she was awaiting trial for criminal charges, and the mother failed to demonstrate any violation of her constitutional rights in the denial of her motion, because the charges against the mother did not arise from the "transaction or occurrence" that led to the juvenile petition but arose after the petition; the trial court provided adequate safeguards to protect her due process rights. In re L.G.A., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).
Standard of Review. - Trial court did not abuse its discretion by denying a mother's third motion to continue in the proceeding commenced to terminate her parental rights to her son because, though she was incarcerated prior to the hearing, such incarceration was the result of her own actions in abducting the child and the preceding continuance was allowed expressly for the purpose of allowing the mother to gather the documents that she asserted she needed to obtain. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).
Because a parent did not demonstrate any extraordinary circumstances that necessitated a continuance, the trial court did not abuse its discretion in initially denying the parent's motion to continue. In re C.J.H., 240 N.C. App. 489, 772 S.E.2d 82 (2015).
Given that there was no violation of a parent's due process rights when parental rights are terminated at a hearing at which the parent was not present, respondent's motion to continue was not based on a constitutional right, and the denial of the motion
was reviewed for abuse of discretion. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).
Denial of Stay Proper. - Trial court did not err by failing to grant the stepmother's motion to stay the proceedings because there was no statutory mandate that the trial court grant a stay; counsel for the county department of social services gave the
trial court several legitimate reasons for denying the motion. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).
Failure to Show Delay was Prejudicial. - Failure to hold a timely hearing as required under G.S. 7B-801 and G.S. 7B-803 was not erroneous where respondents failed to show prejudice as a result of any delay; at the adjudication and dispositional stage it was the status of the juvenile that was at issue, and because parental status was not at issue,
it was more difficult for respondents to show prejudice. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007).
Delay Not Justified by Continuances. - Trial court, which continued a neglect and dependency case seven times due to a crowded docket, three times due to the absence of parties, and four times due to the absence of attorneys, did not abuse its discretion
when it continued the case due to an attorney's medical needs and again due to a death in the mother's family, as these situations might have been considered extraordinary circumstances justifying a continuance. However, a new
trial was required because the court abused its discretion by continuing the case the other times in a manner inconsistent with G.S. 7B-803;
therefore, the court's violations of the time limits set out in G.S. 7B-801(c) and G.S. 7B-906(a) (repealed, see now G.S. 7B-906.1) were not justified, and the mother and the fathers of her two children were prejudiced by the delays. In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).
The grounds for a motion for a continuance must be fully established. In re Lail, 55 N.C. App. 238, 284 S.E.2d 731 (1981) (decided under prior law).
Prejudice Not Shown After Continuance. - Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as: (1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c); (4) the dispositional order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased until the dispositional hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
As for delays in a child neglect case based on various continuances, most of the delay was attributed to respondent-parents' search for an expert witness, and their request for a special trial setting, and not as they argued, due to the trial court; any assignment of error based on G.S. 7B-801(c) and G.S. 7B-803 was overruled. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).
Trial court did not abuse its discretion in denying respondent's motion for a continuance; counsel expected her to be in court, counsel never argued that she needed additional time to prepare for the hearing, respondent never gave any reason for her absence,
and prejudice was not shown. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).
Motion Based upon Absence of Witness. - When the motion for a continuance is based upon the absence of a witness, the motion should be supported by an affidavit indicating the facts to be proved by the witness. In re Lail,
55 N.C. App. 238, 284 S.E.2d 731 (1981) (decided under prior law).
Preservation for Review. - Respondent failed to preserve the issue of whether the denial of the motion for a continuance violated her constitutional right to effective assistance of counsel, as she raised the issue for the first time on appeal. In re
C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).
Evidence was Sufficient to Support Neglect Finding. - Fact that the mother admitted to using cocaine for at least two months prior to the child's birth, the mother and the child tested positive for cocaine at the time of the child's birth, that there
were incidents of domestic violence between respondents, and that the mother refused to sign a safety assessment plan, provided clear and convincing evidence supporting a finding of neglect. In re B.M.,
183 N.C. App. 84, 643 S.E.2d 644 (2007).
Cited in In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006); In re E.K., 202 N.C. App. 309, 688 S.E.2d 107 (2010).
§ 7B-804. Rules of evidence.
Where the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply.
History
(1979, c. 815, s. 1; 1981, ch. 469, s. 17; 1998-202, s. 6; 1999-456, s. 60.)
CASE NOTES
Psychological Reports. - The clear intent of the legislature is that a hearing upon a motion for review is in the nature of a dispositional hearing rather than an adjudicatory hearing, and that the formal rules of evidence,
G.S. 8C-1, do not apply. Therefore, the trial court could properly consider written psychological reports in determining, on motion brought
by parents whose parental rights had been terminated under former G.S. 7A-289.34, whether the needs of children would be best served by modification of its previous orders concerning visitation. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985), decided prior to enactment of this Chapter.
Medical Records. - Although medical records were admitted (in reliance on Rule 10.3, Twelfth Judicial District Juvenile Case Management Plan) into evidence without proper foundation, as required by G.S. 8C-1,
N.C. R. Evid. 703, 803(6), in order to fit within the exceptions to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 801(c), 802, because -
pursuant to G.S. 7B-804 - the rules of evidence in civil cases were to apply to child neglect cases, respondents, parents of the children, who were found neglected,
had the burden of showing prejudice at the admission of the records; but they could not, given the other extensive direct testimony from medical experts upon which it was presumed the trial court had relied. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).
Absence of parent. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by
clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000).
Judicially Noticed Findings. - Notwithstanding the trial court's authority to take notice of the court's own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of the court's prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).
Cited in In re E.P, 183 N.C. App. 301, 645 S.E.2d 772 (2007); In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015); In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).
§ 7B-805. Quantum of proof in adjudicatory hearing.
The allegations in a petition alleging that a juvenile is abused, neglected, or dependent shall be proved by clear and convincing evidence.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2010-90, s. 12; 2013-129, s. 20.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 20, which deleted the former second sentence, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 12, effective July 11, 2010, substituted "that a juvenile is abused, neglected, or dependent" for "abuse, neglect, or dependency" in the first sentence, and added the second sentence.
Session Laws 2013-129, s. 20, effective October 1, 2013, deleted the former second sentence, which read "Allegations in a petition alleging that a respondent is a responsible individual who has abused or seriously neglected a juvenile shall be proved by a preponderance of the evidence." For applicability, see editor's note.
Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Standards of Evidence. - In a juvenile adjudicatory hearing, the respondent is entitled to have the evidence evaluated by the same standards as apply in criminal proceedings against adults. The State, therefore, must present substantial evidence of each
essential element of the offense charged and of respondent's being the perpetrator. In re Walker, 83 N.C. App. 46, 348 S.E.2d 823 (1986).
Clear and Convincing Evidence Required. - Allegations of child abuse and neglect must be proven by clear and convincing evidence. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).
Court reversed a trial court's order adjudicating a mother's children as neglected, because the county department of social services did not present any evidence by which the trial court could have made any findings of fact or conclusions of law as required by G.S. 7B-807, and nevertheless, the trial court entered certain findings of fact, one of which recited verbatim the summary of the department's intervention, which report had not been introduced into evidence. In re A.W., 164 N.C. App. 593, 596 S.E.2d 294 (2004).
While the findings of fact and conclusions of law showed, by clear and convincing evidence pursuant to G.S. 7B-805, that a father neglected his three-month-old infant under G.S. 7B-101(15), based on an incident where the infant suffered a severe head injury while in his father's sole care, which could not have been attributed to rolling off the couch as the father contended happened when he went to get a bottle for the infant, the proof was insufficient to show that the mother had neglected the infant; she was not at home when the incident occurred and there were no other incidents involving the infant. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).
Disagreement among expert physicians as to whether a six-month-old child's broken clavicle, compression fracture of the spine, and hemorrhaged eyes were caused by accidents or by non-accidental trauma, as well as a trial court's findings that the child's regular pediatrician saw no reason for concern about child abuse and that there was no evidence that her parents had problems affecting their parenting ability, supported the trial court's conclusion of law that clear and convincing evidence was not presented to show that the child was abused or neglected under G.S. 7B-805. In re A.R.H., 177 N.C. App. 797, 629 S.E.2d 925 (2006).
Finding of child abuse under G.S. 7B-101(1) was improper because the only evidence of record was a spanking by the father with a belt, resulting in a bruise on the child's buttocks, which did not rise to the level of "serious injury" to constitute abuse by clear and convincing evidence, as required by G.S. 7B-805. In re C.B., 180 N.C. App. 221, 636 S.E.2d 336 (2006), aff'd, 361 N.C. 345, - S.E.2d - (2007).
Trial court did not err in concluding that the minor child was a neglected juvenile, as the allegation in the petition that the minor child was neglected because the minor child lived in an environment injurious to the minor child's welfare was proven by clear and convincing evidence; indeed, the evidence showed that the minor child's older sibling was adjudicated abused and neglected because the mother's boyfriend, who was cohabitating with the mother at the time of the abuse, pled guilty to several felony sex offenses. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).
Trial court erred in adjudicating a child as dependent and placing her in the custody of the a social service agency because, while the trial court acknowledged that the father's paternity had been established, it made no findings and the agency made
no allegations and presented no evidence that the father, although a minor, was unable to provide or arrange for the care and supervision of the child. In re V.B., 239 N.C. App. 340, 768 S.E.2d 867 (2015).
Burden of Persuasion in Summary Ejectment Action. - Dismissal of a summary ejectment action was error because a trial court held the landlord to a clear, cogent, and convincing evidence standard, and in a summary ejectment action, the landlord's burden
of persuasion was by the preponderance of the evidence as set forth in G.S. 42-30; this standard also applied
to appeals of summary ejectment actions in the district court. Durham Hosiery Mill Ltd. P'ship v. Morris, 217 N.C. App. 590, 720 S.E.2d 426 (2011).
The trial court is required to make ultimate findings of fact based on the evidence and to enter clear and specific conclusions of law based on the findings of fact. In re Gleisner, 141 N.C. App. 475,
539 S.E.2d 362 (2000).
Binding Effect of Order Failing to State Standard of Proof When Not Appealed. - A trial court's failure to state the standard of proof used in making a determination of abuse or neglect constitutes error. However, because no appeal was taken or other
relief sought from trial court's failure to state the standard of proof used in an order adjudging respondent's children abused and neglected, it remained a valid final order which was binding in a later proceeding on the facts.
In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).
Estoppel to Relitigate Issue Decided in Previous Proceeding. - The trial court did not err by concluding that petitioner was authorized to file petition to terminate parental rights, nor by ruling that the parties were estopped from relitigating abuse
and neglect issues decided in previous proceeding in which respondent was found to have sexually abused his children, where the trial court did not rely solely upon the previous order in a way that would have impermissibly predetermined
the outcome of the termination hearing, and did not deny respondent the opportunity to present evidence relevant to these issues, but merely prohibited the parties from relitigating whether respondent had, in fact, sexually abused
his children. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).
Statement of standard. - Trial court met the requirements of former G.S. 7A-635 (see now this section) and former G.S. 7A-637 (see now G.S. 7B-807 and 7B-2410) by stating the standard used at the adjudication stage of the proceeding; the court was not also required to recite that the court's decision at the disposition stage of the proceeding was discretionary. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).
Court's statement on the first page of its adjudication order stating: "For purposes of adjudication, the court finds the following facts have been proven by clear and convincing evidence" satisfies G.S. 7B-805 by stating the standard of proof was satisfied. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).
Differing Standards for Adjudicatory and Dispositional Hearings. - Trial court did not err in consolidating the adjudicatory and dispositional hearings for evidentiary purposes in the mother's case alleging abuse and neglect against her child, as there was no requirement that those two stages be conducted at separate hearings and the trial court still applied the proper, separate evidentiary standards, namely "clear and convincing evidence" for the adjudicatory stage and the "best interests of the child" standard for the disposition stage. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).
Notwithstanding the trial court's authority to take notice of the courts own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of its prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).
Absence of parent. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000).
Trial court erred in entering a consent judgment finding that a mother had neglected her children; pursuant to G.S. 7B-902, consent by the father of a child
was insufficient to bind the mother when the mother was not present at the hearing and did not consent to the judgment, and testimony by a social worker did not meet the clear and convincing evidence requirement of G.S. 7B-805.
In re J.R., 163 N.C. App. 201, 592 S.E.2d 746 (2004).
The evidence before the trial court was sufficient to support its findings of abuse and neglect where: (1) Child, while in respondent's sole care, suffered multiple burns over a wide portion of her body; (2) no accidental cause was established, and the child in fact stated that respondent burned her; (3) the burns were serious, requiring prompt medical attention; (4) respondent did not seek treatment for the child's injuries and refused to permit social worker to do so; and (5) the child was taken for treatment only upon the intervention of the sheriff's department, over respondent's opposition. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).
A finding of neglect by clear and convincing evidence was proper where the children were kept at home, and they did not receive proper medical care, supervision, or adequate nutrition. In re Bell, 107 N.C. App. 566, 421 S.E.2d 590, appeal withdrawn, 333 N.C. 168, 426 S.E.2d 699 (1992).
The trial court's findings of fact regarding child's status as an abused juvenile were supported by clear and convincing evidence where the child testified that her father had shown her a picture of a woman wearing a see-through dress, the child's friend drew a picture in court of what she had seen, i.e. the father's anatomy, a social worker testified that the child had told her that her father had "asked her to touch his penis," and a doctor testified that the child had told her that her father had asked her to look at a "dirty book." In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).
Evidence before the trial court was sufficient to support its findings of abuse and neglect where three physicians, two of whom were experts in the area of child abuse, testified that the juvenile was the victim of Munchausen syndrome by proxy, a form of child abuse with a substantial risk of morbidity and even mortality, possibly induced by the mother either smothering the juvenile or administering a toxin. In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003).
Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her psychological problems, and (5) abuse and neglect adjudication regarding an older daughter. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).
Social services department presented clear, cogent, and convincing evidence from which the trial court could find and conclude that child was at risk of some physical, mental, or emotional impairment where the mother kept the child at her cousin's home in a filthy room with clothes and dirty diapers strewn about, she would leave the home for several days at a time and, upon her return, she would sleep for long periods of time with the child in the bed and would not awaken when the child cried, the mother came home drunk or under the influence of drugs on one occasion and attempted to remove the child from the home in the middle of the night, and the mother was unable to complete a substance abuse treatment program because of frequent altercations with other residents. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
Abuse and neglect determination was supported by clear and convincing evidence as required by G.S. 7B-805, including evidence that the child's skull fracture
was a depression fracture caused by non-accidental means, the mother's explanations were inconsistent with the injuries observed, the injuries occurred while the child was in the physical custody of the mother, the injuries were
severe, and the mother failed to obtain medical attention for the child. In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446,
665 S.E.2d 54 (2008).
Finding that areas of the brain effected by infarctions would not regenerate was supported by clear and convincing evidence. - In a case alleging abuse, neglect, and dependency, a medical expert explained that with an infarction, part of the brain tissue begins to swell, will become damaged, and will either scar down or just go away; the damaged portion of the brain typically will not regenerate. Thus, based on the expert's testimony, the trial court's finding of fact that the areas effected by the infarctions will not regenerate was supported by clear and convincing evidence. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).
Evidence supported a finding of neglect under former G.S. 7A-635 where the trial court found that respondent parents intended to live with their new infant in the home of the maternal grandparents where their previous child died; where the child's father
had been convicted of causing the infant's death; where the mother had been advised regarding the cause of this non-accidental death but continued to support the father's version of events; where the parents had neither expressed
nor exhibited any concern for the future safety of their newborn in their home; and where the father "extended most of the care for the juvenile" during the visits of the parents with the child. In re McLean,
135 N.C. App. 387, 521 S.E.2d 121 (1999).
Evidence of Neglect Was Not Supported by Clear and Convincing Evidence. - In a case alleging abuse, neglect, and dependency, the finding that the mother had neglected in the past to appropriately care for the child was not supported by clear and convincing evidence, because: (1) although the mother testified that she neither placed any devices on the sofa to prevent the child from falling off nor placed any pillows in front of the sofa in the event that the child did roll off, the child was unable to roll over, and was not otherwise mobile, during the prior instances when the parents placed him on the sofa; (2) it was not unusual for parents to place an immobile infant on a sofa, couch, or bed; and (3) the child had never missed any doctor's appointments, was developing appropriately, and had no prior injuries. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).
Trial court did not err in dismissing the neglect and dependency petitions because the department of social services failed to present clear and convincing evidence that the parents' substance abuse problems created a substantial risk of harm to the children. In re E.P, 183 N.C. App. 301, 645 S.E.2d 772 (2007).
Trial court properly adjudicated a child to be a neglected juvenile where the testimony showed that the mother had left the child alone in a motel room when she was only 16 months old. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).
Evidence of Statutory Rape Insufficient to Support Dependency Finding. - Fact that the father could have been criminally liable for statutory rape pursuant to G.S. 14-27.7A(a),
standing alone, was insufficient to support a conclusion that the father was unable to provide appropriate care for the child, and thus that the child was a dependent child. In re J.L., 183 N.C. App. 126, 643 S.E.2d 604 (2007).
Finding that mother was not willing to investigate the needs of the child in a safe environment was not supported by clear and convincing evidence in a case alleging abuse, neglect, and dependency; in one week, the mother provided the county department of social services with at least four names of individuals who could potentially care for the child, if necessary. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).
Consent Adjudication Order. - Trial court entered a consent adjudication order adjudicating a mother's son an abused and neglected juvenile without an adjudicatory hearing and based entirely on stipulated facts. Under these circumstances, the appellate
court declined to extend its holding in In re Church to find reversible error based on the failure of the consent adjudication order to state the evidentiary standard contained in G.S. 7B-805.
In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017).
Adjudication Order Was A Nullity. - Adjudication order finding a child was abused and signed by the chief district court judge was a nullity because the parties did not and could not have stipulated to the final conclusion, and no other evidence beyond the parties' stipulation was presented at the adjudication hearing; the retired judge was required to make findings of fact, adjudicated and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235,
659 S.E.2d 738 (2008); In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
Cited in In re Smith, 146 N.C. App. 302, 552 S.E.2d 184 (2001); In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002); Adams v. Bank United of Tex. FSB, 167 N.C. App. 395, 606 S.E.2d 149 (2004), cert. denied, 359 N.C. 410, - S.E.2d - (2005); In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007); In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010); State v. Stevens, 228 N.C. App. 352, 745 S.E.2d 64 (2013), review denied 367 N.C. 256, 749 S.E.2d 886, 2013 N.C. LEXIS 1285 (2013); In re T.N.G.,
244 N.C. App. 398, 781 S.E.2d 93 (2015); In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016).
§ 7B-806. Record of proceedings.
All adjudicatory and dispositional hearings shall be recorded by stenographic notes or by electronic or mechanical means. Records shall be reduced to a written transcript only when timely notice of appeal has been given. The court may order that other hearings be recorded.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60.)
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Sufficiency of the Recording of Proceedings - Where it appeared that very little of the testimony from a termination of parental rights proceeding was not recorded, and the interruptions in the recording due to the ending of tapes and the malfunctioning of equipment were only very brief, and where the trial court's extensive findings indicated a careful evaluation of all of the evidence, the appellate court's review of the record, without the benefit of a narration of the missing evidence, failed to show any prejudice to the mother from the missing testimony. In re Clark, 159 N.C. App. 75, 582 S.E.2d 657 (2003).
When, in a termination of parental rights proceeding, one day's testimony was not recorded, the father appealing the trial court's subsequent judgment did not show that he was prejudiced, as he made no attempt to reconstruct the evidence not recorded,
made only general allegations of prejudice in his appellate brief, and a review of the transcript indicated much of the missing testimony was clearly referenced and repeated by the witnesses, including the father, during the hearing's
second day. In re Bradshaw, 160 N.C. App. 677, 587 S.E.2d 83 (2003).
Party Failed to Reconstruct Destroyed Transcript. - Mother's argument that she had been denied due process in a review hearing on a change to her child's permanence plan was rejected where the record on appeal had been settled without any transcript from
an earlier review hearing, at no point did the mother attempt to provide the appellate court with a narrative of that proceeding in the trial court, and as a result it could not be said that she had done all that she could do to
reconstruct the missing transcript. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).
Proceedings under former G.S. 7A-636 (see now this section) are to be reported as other "civil trials" in accordance with G.S. 7A-198.
In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
§ 7B-807. Adjudication.
- If the court finds from the evidence, including stipulations by a party, that the allegations in the petition have been proven by clear and convincing evidence, the court shall so state. A record of specific stipulated adjudicatory facts shall be made by either reducing the facts to a writing, signed by each party stipulating to them and submitted to the court; or by reading the facts into the record, followed by an oral statement of agreement from each party stipulating to them. If the court finds that the allegations have not been proven, the court shall dismiss the petition with prejudice, and if the juvenile is in nonsecure custody, the juvenile shall be released to the parent, guardian, custodian, or caretaker.
- Repealed by Session Laws 2013-129, s. 21, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
- The adjudicatory order shall be in writing and shall contain appropriate findings of fact and conclusions of law. The order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the hearing. If the order is not entered within 30 days following completion of the hearing, the clerk of court for juvenile matters shall schedule a subsequent hearing at the first session of court scheduled for the hearing of juvenile matters following the 30-day period to determine and explain the reason for the delay and to obtain any needed clarification as to the contents of the order. The order shall be entered within 10 days of the subsequent hearing required by this subsection.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2001-208, s. 17; 2001-487, s. 101; 2005-398, s. 3; 2010-90, s. 13; 2011-295, s. 6; 2013-129, s. 21.)
Editor's Note. - Session Laws 2013-129, s. 41, made the repeal of subsection (a1) by Session Laws 2013-129, s. 21, applicable to actions filed or pending on or after October 1, 2013.
Effect of Amendments. - Session Laws 2010-90, s. 13, effective July 11, 2010, added subsection (a1).
Session Laws 2011-295, s. 6, effective October 1, 2011, and applicable to actions filed or pending on or after that date, in subsection (a), inserted "from the evidence, including stipulations by a party" in the first sentence, and added the second sentence.
Session Laws 2013-129, s. 21, effective October 1, 2013, deleted subsection (a1) regarding placement of a name on the responsible individuals list. For applicability, see editor's note.
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Legislative Intent. - Although G.S. 7B-1109 does not specifically require the trial court to affirmatively state in its order terminating parental rights that the allegations of the petition were proved by clear and convincing evidence, this section does require such a statement, and without such an affirmative statement the appellate court is unable to determine if the proper standard of proof was utilized for its ruling on parental termination. In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000).
When construing this section and 7B-1109(f) together to determine legislative intent, like this section, G.S. 7B-1109(f) requires the trial court to affirmatively
state in its order the standard of proof utilized in the termination proceeding. In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000).
The statutory use of "shall" is a mandate to trial judges requiring them to affirmatively state that the allegations of the juvenile petition are proved beyond a reasonable doubt. Failure to follow the mandate of the statute is error. In re Wade, 67 N.C. App. 708, 313 S.E.2d 862 (1984).
If the judge finds that the allegations in the petition have been proved, as provided in G.S. 7A-635 (see now G.S. 7B-805 and 7B-2409), i.e., beyond a reasonable doubt, he shall so state. The failure of the trial judge to follow the clear mandate of the statute is error. In re Johnson, 76 N.C. App. 159, 331 S.E.2d 756 (1985).
It is reversible error for a trial court to fail to state affirmatively that an adjudication of delinquency is based upon proof beyond a reasonable doubt. In re Walker, 83 N.C. App. 46, 348 S.E.2d 823 (1986).
The order of the trial judge must affirmatively state that the allegations are proved beyond a reasonable doubt, even in cases where the juvenile admits the offense alleged. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).
The statutory use of the word "shall" mandates trial judges to affirmatively state that the reasonable doubt standard was followed. Failure of the trial judge to follow the clear mandate of the statute is error. In re Mitchell,
87 N.C. App. 164, 359 S.E.2d 809 (1987).
Procedural Requirements. - Nothing in G.S. 7B-807(a) allowed the trial court to hold a ruling on an allegation in a petition alleging abuse, neglect, or dependency in abeyance, as the trial court attempted to do in this instance; when a trial court was required to adjudicate allegations of abuse, neglect, or dependency, it must either adjudicate the juvenile as abused, neglected, or dependent if the allegations were proven by clear and convincing evidence or dismiss the allegation if the necessary evidentiary showing was not made. In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010).
Trial court lacked subject matter jurisdiction after periodic judicial reviews were discontinued to adjudicate juveniles as abused, neglected, or dependent when a director of social services (DSS) sought court action based on a new report of abuse, neglect,
or dependency without the prior filing of a verified petition by the DSS. Moreover, the trial court could not proceed directly to a dispositional hearing without first conducting an adjudicatory hearing and actually adjudicating
the juveniles as abused, neglected, or dependent. In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
Stipulations. - At best, a mother entered into a stipulation where the trial court read facts into the record noting that a child tested positive for morphine at birth and that the mother had used illegal substances during her pregnancy, and the mother
then agreed to those facts under oath. In re L.G.I., 227 N.C. App. 512, 742 S.E.2d 832 (2013).
Binding Effect of Order Failing to State Standard of Proof When Not Appealed. - A trial court's failure to state the standard of proof used in making a determination of abuse or neglect constitutes error. However, because no appeal was taken or other
relief sought from trial court's failure to state the standard of proof used in an order adjudging respondent's children abused and neglected, it remained a valid final order which was binding in a later proceeding on the facts.
In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).
Estoppel to Relitigate Issue Decided in Previous Proceeding. - The trial court did not err by concluding that petitioner was authorized to file petition to terminate parental rights, nor by ruling that the parties were estopped from relitigating abuse
and neglect issues decided in previous proceeding in which respondent was found to have sexually abused his children, where the trial court did not rely solely upon the previous order in a way that would have impermissibly predetermined
the outcome of the termination hearing, and did not deny respondent the opportunity to present evidence relevant to these issues, but merely prohibited the parties from relitigating whether respondent had, in fact, sexually abused
his children. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).
Adjudication Supported by Evidence - Trial court's finding of abuse and neglect were based on clear and convincing evidence where three physicians, two of whom were experts in the area of child abuse, testified that the juvenile was the victim of Munchausen syndrome by proxy, a form of child abuse with a substantial risk of morbidity and even mortality, possibly induced by the mother either smothering the juvenile or administering a toxin. In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003).
In a case where there was an adjudication of dependency, neglect, and abuse, any error in the admission of the child's hearsay statements was harmless because the other evidence alone supported a finding of dependency and neglect. The evidence at trial clearly showed (1) the mother violated a safety plan by leaving the child alone with men who were alleged to be sexually abusing her; (2) an examining doctor found extensive eroding dental caries going into the gums and a one-inch linear scar on the child's lower leg that was opined to be inflicted by the mother with either a shoe, a stick with thorns, or the metal part of a belt; (3) the mother called the child a "whore" and a "bitch" and further stated that the child was no longer her daughter and that she was on her own and no longer had a mother; and (4) expert testimony that the child displayed symptoms of anxiety, anger, disassociation, and post-traumatic stress disorder. In re M.G.T.-B., 177 N.C. App. 771, 629 S.E.2d 916 (2006).
Termination of a mother's parental rights to her two minor children was upheld on appeal where the unchallenged findings of fact made by the trial court established by clear, cogent, and convincing evidence in the record that the mother had willfully left her children in foster care without making reasonable progress to correct the conditions that led to their placement. The findings supporting that conclusion included: the children were in foster care for over 12 months; the mother missed seven out of eleven appointments and failed to complete a substance abuse treatment program; missed five out of ten parenting classes; tested positive for drugs several times; failed to establish a permanent residence and had been moving around from family and friends for a total of eight separate residences; failed to obtain employment; and failed to stay in contact with the Department of Social Services. In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008).
Infant child sustained a torn lingual frenulum and multiple bone fractures, which were serious injuries inflicted by other than accidental means, which supported the conclusion that the child was abused; the finding that the parents were responsible was appropriate, as they were the sole caretakers. In re R.S., 254 N.C. App. 678, 802 S.E.2d 169 (2017).
District court properly adjudicate one child as abused and both children as neglected where the evidence showed that the mother admitted to the detective that she had sent a pornographic photo of one child to her aunt, claiming her bother took the photos, while the detective determined that the mother had taken them. In re N.K., - N.C. App. - , - S.E.2d - (Oct. 20, 2020).
Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Evidentiary Standard. - Trial court's order that stated that it was concluding "through clear, cogent, and convincing evidence" that the mother had abused and neglected her child sufficiently stated the standard of proof, as statutory law did not require that the standard of proof be set forth in any specific form, and, thus, recitation of the standard in the order was acceptable. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).
Trial court's findings in abuse and neglect case against mother which recited little more than a recitation of the allegations that the county social services department made against her and restated some testimony given at a related hearing were not proper "ultimate findings of fact," and, thus, a remand of the case from the appellate court was required so that the proper findings could be made. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).
County department of social services did not satisfy its burden of proving the allegations in its juvenile petitions by clear, cogent, and convincing evidence under G.S. 7B-1109 because the subject children were not neglected juveniles under G.S. 7B-101(15), nor dependant juveniles under G.S. 7B-101(9);
the trial court in its ruling properly entered uncontested findings of fact that: (1) the father possessed a gun, but did not point it at the mother or the children during a domestic disturbance; (2) the parents' three oldest children
left their residence with the father, but no kidnapping was reported, and an Amber Alert was not issued; (3) the district attorney's office dismissed the charges against the father for communicating threats to and assault by pointing
a gun at the mother; and (4) the father was not in possession of a gun when he was arrested. In re H.M., 182 N.C. App. 308, 641 S.E.2d 715 (2007).
Findings Not Proven by Clear Evidence. - Court reversed a trial court's order adjudicating a mother's children as neglected under G.S. 7B-101(15) because the county department of social services did not present any evidence by which the trial court could have made any findings of fact or conclusions of law as required by G.S. 7B-807, and nevertheless, the trial court entered certain findings of fact, one of which recited verbatim the summary of the department's intervention, which report had not been introduced into evidence; thus, the trial court erred by entering findings of fact not proven by clear, cogent, and convincing evidence, as required by G.S. 7B-805, and a new trial was ordered. In re A.W., 164 N.C. App. 593, 596 S.E.2d 294 (2004).
trial court erred in adjudicating a child as dependent and placing her in the custody of the a social service agency because, while the trial court acknowledged that the father's paternity had been established, it made no findings and the agency made no allegations and presented no evidence that the father, although a minor, was unable to provide or arrange for the care and supervision of the child. In re V.B., 239 N.C. App. 340, 768 S.E.2d 867 (2015).
Trial court erred in adjudicating children to be neglected and dependent juveniles because the parties did not stipulate to any adjudicatory facts as the adjudication was supported solely by two written reports submitted by a county department of social
services (DSS) at the hearing. Therefore, the trial court's findings of fact consisted of recitations from the facts alleged in the petitions and wholesale incorporation of reports prepared by the DSS. In re K.P.,
249 N.C. App. 620, 790 S.E.2d 744 (2016).
Evidence Did Not Support Finding of Abuse. - Trial court's detailed findings of fact, including that the doctors noted in medical records that the infant was a healthy, well-cared-for, three-month-old baby and that respondents were at all times forthcoming and cooperative in the investigation and did not delay in seeking medical attention, did not support the conclusion that respondents inflicted or allowed the infliction of the infant's injuries. That respondents could not explain the injury did not necessitate a finding of abuse In re K.L., - N.C. App. - , 845 S.E.2d 182 (2020).
Findings Improperly Incorporated Allegations of Petition. - Trial court improperly incorporated the allegations from the juvenile petition as its findings of fact under G.S. 7B-807(b) in its adjudication of the child's neglect or dependency due to the mother's absence from home. The trial court also erred in failing to address visitation as required by G.S. 7B-905(c).
In the Matter of S.C.R., 217 N.C. App. 166, 718 S.E.2d 709 (2011).
Trial court met the requirements of this section by stating the standard used at the adjudication stage of the proceeding; he was not also required to recite that his decision at the disposition stage of the proceeding was discretionary. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).
Trial court properly adjudicated a mother's son as a neglected child because the trial court's order stated that it made its conclusion through clear, cogent, and convincing evidence, which was sufficient to meet the requirement of
G.S. 7B-807. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669
S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).
Late Filing of Adjudication and Disposition Orders Not Grounds for Reversal Where No Prejudice. - Court's failure to file child neglect adjudication and disposition orders within 30 days as required under respectively, G.S. 7B- 807(b) and
G.S. 7B-905(a), was not grounds for reversal because the mother could not show how she was prejudiced by the late filing. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).
Failure to Timely Hold Hearing Not Grounds for Reversal. - Trial court's failure to timely hold the hearing required by G.S. 7B-807(b) did not necessitate
reversal because the mother failed to show that the mother was prejudiced by the trial court's failure; neither the mother's visitation with the child nor the mother's rights to appeal were affected. In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008).
Violation of Time Limit. - New trial was required where the trial court violated the statutory time limit set out in G.S. 7B-807(b) for the writing, signing,
and entering of an adjudicatory order because the fathers of the two subject children were prejudiced by the delay. In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).
Mandamus Proper Remedy for Violation of Time Limit. - In appeals from adjudicatory and dispositional orders in which the alleged error is the trial court's failure to adhere to statutory deadlines set forth in G.S. 7B-807(b) and 7B-905(a), such error arises subsequent to the hearing and therefore does not affect the integrity of the hearing itself; thus, a new hearing serves no legitimate purpose, does not remedy the error, and only exacerbates the error and causes further delay. Instead, a party seeking recourse for such error should petition for writ of mandamus pursuant to N.C. R. App. P. 22(a). In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008).
Trial court committed no prejudicial error where the court's failure to comply with G.S. 7B-807(b) and G.S. 7B-905(a) occurred after a dispositional and adjudicative hearing, and the three-month delay in entry of the order of adjudication and disposition could not have been remedied by a new hearing. The proper remedy would have been to seek a
writ of mandamus pursuant to N.C. R. App. P. 22(a) to compel the trial court to enter the order. In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008).
Adjudication and Disposition Order a Nullity. - Since only a stipulation without any adjudication or rendering of the order, any action by the chief district court judge to cause a later prepared and unsigned draft order to be entered was ministerial; the written disposition portion of the order went beyond the retired judge's oral recitations, and because rendering and entering judgment was more than a ministerial task, the chief district court judge had no authority to sign the adjudication and disposition orders, which were a nullity. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Applied in In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005); In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re A.K., 360 N.C. 449,
628 S.E.2d 753 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); State v. Rivens, 198 N.C. App. 130, 679 S.E.2d 145 (2009).
Cited in In re Clark, 159 N.C. App. 75, 582 S.E.2d 657 (2003); In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189,
606 S.E.2d 903 (2004); In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424 (2005); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005); In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006); Owen v. Keeter (In re C.L.K.), 182 N.C. App. 600, 643 S.E.2d 458 (2007); In re J.L.,
183 N.C. App. 126, 643 S.E.2d 604 (2007); In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007); Robertson v. Steris Corp., 237 N.C. App. 263,
765 S.E.2d 825 (2014); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re K.M.M., 242 N.C. App. 25, 774 S.E.2d 430 (2015); In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017); In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017).
§ 7B-808. Predisposition report.
- The court shall proceed to the dispositional hearing upon receipt of sufficient social, medical, psychiatric, psychological, and educational information. No predisposition report shall be submitted to or considered by the court prior to the completion of the adjudicatory hearing. The court may proceed with the dispositional hearing without receiving a predisposition report if the court makes a written finding that a report is not necessary.
- The director of the department of social services shall prepare the predisposition report for the court containing the results of any mental health evaluation under G.S. 7B-503, a placement plan, and a treatment plan the director deems appropriate to meet the juvenile's needs.
-
The chief district court judge may adopt local rules or make an administrative order addressing the sharing of the reports among parties, including an order that prohibits disclosure of the report to the juvenile if the court determines that disclosure
would not be in the best interest of the juvenile. Such local rules or administrative order may not:
- Prohibit a party entitled by law to receive confidential information from receiving that information.
- Allow disclosure of any confidential source protected by statute.
History
(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2003-140, s. 2; 2004-203, s. 17.)
Legal Periodicals. - For 1984 survey, "Termination of Parental Rights: Putting Love in Its Place," see 63 N.C.L. Rev. 1177 (1985).
CASE NOTES
Continuance at Request of Juvenile. - Former G.S. 7A-639 (see now G.S. 7B-808 and 7B-2413) and former G.S. 7A-640 (see now G.S. 7B-901 and 7B-2501) make clear the legislative intent that the dispositional hearing must be continued for the juvenile respondent to present evidence when he requests such a continuance. This is particularly so in light of the provision
of former G.S. 7A-632 (see now G.S. 7B-803 and 7B-2406) that "The judge may continue at any time any case to allow additional factual evidence, social information
or other information needed in the best interest of the juvenile or in the interest of justice." In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979), decided prior to enactment of this Chapter.
Court's Order Upheld in Spite of Absence of Required Information. - The court rejected the defendant's contention that the juvenile court erred in making its dispositional order because it had insufficient social, medical, psychiatric, psychological,
and educational information regarding the juvenile, under former 7A-639, where the juvenile and his parents refused to participate in any assessments with the court counselor either before or after the adjudicatory hearing. In
re Clapp, 137 N.C. App. 14, 526 S.E.2d 689 (2000).
Trial Court Did Not Improperly Consider Dispositional Evidence. - Trial court did not improperly consider dispositional evidence in determining whether minor children were abused and neglected, because there was substantial evidence upon which the trial
court could conclude the minor children were abused and neglected, and, in the judgment, the trial court rendered one set of findings of fact; thereafter, in the same judgment, the trial court rendered its adjudicatory and dispositional
conclusions of law. Thus, the findings of fact were used to support both the adjudication and dispositional orders. In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584 (2004),
appeal dismissed, - N.C. - , 603 S.E.2d 884 (2004).
Applied in In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
ARTICLE 9. Dispositions.
Sec.
§ 7B-900. Purpose.
The purpose of dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction. If possible, the initial approach should involve working with the juvenile and the juvenile's family in their own home so that the appropriate community resources may be involved in care, supervision, and treatment according to the needs of the juvenile. Thus, the court should arrange for appropriate community-level services to be provided to the juvenile and the juvenile's family in order to strengthen the home situation.
History
(1979, c. 815, s. 1; 1995 (Reg. Sess., 1996), c. 609, s. 1; 1998-202, s. 6; 1999-456, s. 60.)
Editor's Note. - Articles 1-11, of Subchapter I of Chapter 7B, as enacted by Session Laws 1998-202, s. 6, and amended by Session Laws 1998-229, ss. 18 through 28, and Session Laws 1999-456, s. 60, are effective July 1, 1999, and applicable to abuse, neglect, and dependency reports received, petitions filed, and reviews commenced on or after that date.
Section 5 of Session Laws 1998-202, also effective July 1, 1999, repealed the former North Carolina Juvenile Code, Articles 41 through 59 of Chapter 7A, along with additional related provisions.
Where applicable, historical citations and case annotations to former sections have been added to the corresponding sections in new Chapter 7B.
At the end of new Chapter 7B are tables showing comparable sections and their disposition of new Chapter 7B.
Session Laws 1998-202, s. 36, contains a severability clause.
Legal Periodicals. - For article on rights and interests of parent, child, family and State, see 4 Campbell L. Rev. 85 (1981).
For note on community-based care for juvenile offenders, see 18 Wake Forest L. Rev. 610 (1982).
For article, "Leandro v. State and the Constitutional Limitation on School Suspensions and Expulsions in North Carolina" see 83 N.C. L. Rev. 1507 (2005).
For article, "Recent Development: Long-Term Suspension and the Right to an Education: An Alternative Approach," 90 N.C.L. Rev. 293 (2011).
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Purpose of Juvenile Code. - The stated purpose of the North Carolina Juvenile Code is to avoid commitment of the juvenile to training school (now youth development center) if he could be helped through community-level resources. In re Hughes,
50 N.C. App. 258, 273 S.E.2d 324 (1981).
Discretion of Court. - It was the legislature's intention that the district courts exercise sound discretion in fashioning an appropriate response to each particular instance of delinquency. In re Brownlee, 301 N.C. 532,
272 S.E.2d 861 (1981).
Duty of District Court. - It is the constant duty of the district court to give each child subject to its jurisdiction such oversight and control as will conduce to the welfare of the child and to the best interest of the State, and to ensure that the juvenile be carefully afforded all constitutional safeguards at every stage of the hearings. In re Eldridge, 9 N.C. App. 723, 177 S.E.2d 313 (1970).
The court is required to consider the welfare of the delinquent child as well as the best interest of the State. In re Hardy, 39 N.C. App. 610, 251 S.E.2d 643 (1979).
What Judge Must Determine. - This section necessarily requires the judge to first determine the needs of the juvenile and then to determine the appropriate community resources required to meet those needs in order to strengthen the home situation of the
juvenile. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Determination of Child's Interest. - What is or is not in the best interest of the child must be determined in tandem with the perception of the legislature as to what is in the best interest of the state as enunciated by the terms of the Juvenile Code
and by its general theme as deduced from the impetus behind its enactment. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).
Restitution Not in Children's Best Interest. - Where there was insufficient evidence before the juvenile court that the juveniles had or could reasonably acquire the means to pay $539.50 each in restitution within twelve months, it was not in their best
interest to require such. In re McKoy, 138 N.C. App. 143, 530 S.E.2d 334 (2000).
Least Restrictive Disposition Must Be Selected. - In selecting among dispositional alternatives, the trial judge is required to select the least restrictive disposition, taking into account the seriousness of the offense, degree of culpability, age, prior
record, and circumstances of the particular case. The judge must also weigh the State's best interest and select a disposition consistent with public safety, and within the judge's statutorily granted authority. In re Bullabough,
89 N.C. App. 171, 365 S.E.2d 642 (1988).
Court Limited to Using Available Dispositional Alternatives. - The district court's authority in juvenile dispositions is limited to utilization of currently existing programs or those for which the funding and machinery for implementation is in place. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).
When a student has been lawfully suspended or expelled pursuant to G.S. 115C-391 and the school has not provided a suitable
alternative educational forum, court-ordered public school attendance is not a dispositional alternative available to the juvenile court judge, absent a voluntary reconsideration of or restructuring of the suspension by the school
board to allow the student's restoration to an educational program within its system. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).
District Court Not Authorized to Require Creation of Foster Home. - The district court is not authorized to require a county Department of Social Services, either by itself or in conjunction with another agency, to implement the creation of a foster home
with appropriate staff, wherein juveniles might be permanently domiciled for program treatment and delivery of services. In re Wharton, 305 N.C. 565, 290 S.E.2d 688 (1982).
Identical Judgments Erroneous for Varying Offenses and Culpability. - The juvenile court failed to consider the express purposes of the Juvenile Code where it entered identical judgments in all six cases tried together, and in which the juveniles ranged
in age from 6 to 14, were found to have committed and admitted committing different offenses, and had varying degrees of culpability. In re Register, 84 N.C. App. 336, 352 S.E.2d
889 (1987).
Applied in In re Dexter, 147 N.C. App. 110, 553 S.E.2d 922 (2001).
Cited in In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001); In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005); In re A.K., 360 N.C. 449,
628 S.E.2d 753 (2006).
§ 7B-900.1. Post adjudication venue.
- At any time after adjudication, the court on its own motion or motion of any party may transfer venue to a different county, regardless of whether the action could have been commenced in that county, if the court finds that the forum is inconvenient, that transfer of the action to the other county is in the best interest of the juvenile, and that the rights of the parties are not prejudiced by the change of venue.
-
Before ordering that a case be transferred to another county, the court shall find that the director of the department of social services in the county in which the action is pending and the director in the county to which transfer is contemplated have
communicated about the case and that:
- The two directors are in agreement with respect to each county's responsibility for providing financial support for the juvenile and services for the juvenile and the juvenile's family; or
- The Director of the Division of Social Services or the Director's designee has made that determination pursuant to G.S. 153A-257(d).
- When the court transfers a case to a different county, the court shall join or substitute as a party to the action the director of the department of social services in the county to which the case is being transferred and, if the juvenile is in the custody of the department of social services in the county in which the action is pending, shall transfer custody to the department of social services in the county to which the case is being transferred. The director of the department of social services in the county to which the case is being transferred must be given notice and an opportunity to be heard before the court enters an order pursuant to this subsection. However, the director may waive the right to notice and a hearing.
- Before ordering that a case be transferred to a different district, the court shall communicate with the chief district court judge or a judge presiding in juvenile court in the district to which the transfer is contemplated explaining the reasons for the proposed transfer. If the judge in the district to which the transfer is proposed makes a timely objection to the transfer, either verbally or in writing, the court shall order the transfer only after making detailed findings of fact that support a conclusion that the juvenile's best interests require that the case be transferred.
-
Before ordering that a case be transferred to another county, the court shall consider relevant factors, which may include:
- The current residences of the juvenile and the parent, guardian, or custodian and the extent to which those residences have been and are likely to be stable.
- The reunification plan or other permanent plan for the juvenile and the likely effect of a change in venue on efforts to achieve permanence for the juvenile expeditiously.
- The nature and location of services and service providers necessary to achieve the reunification plan or other permanent plan for the juvenile.
- The impact upon the juvenile of the potential disruption of an existing therapeutic relationship.
- The nature and location of witnesses and evidence likely to be required in future hearings.
- The degree to which the transfer would cause inconvenience to one or more parties.
- Any agreement of the parties as to which forum is most convenient.
- The familiarity of the departments of social services, the courts, and the local offices of the guardian ad litem with the juvenile and the juvenile's family.
- Any other factor the court considers relevant.
- The order transferring venue shall be in writing, signed, and entered no later than 30 days from completion of the hearing. The order shall identify the next court action and specify the date within which the next hearing shall be held. If the order is not entered within 30 days following completion of the hearing, the clerk of court for juvenile matters shall schedule a subsequent hearing at the first session of court scheduled for the hearing of juvenile matters following the 30-day period to determine and explain the reason for the delay and to obtain any needed clarification as to the contents of the order. The order shall be entered within 10 days of the subsequent hearing required by this subsection.
-
The clerk shall transmit to the court in the county to which the case is being transferred a copy of the complete record of the case within three business days after entry of the order transferring venue.
- Assign an appropriate file number to the case.
- Ensure that any necessary appointments of new attorneys or guardians ad litem are made.
- Calendar the next court action as set forth in the order transferring venue and give appropriate notice to all parties.
Upon receiving a case that has been transferred from another county, the clerk shall promptly satisfy the following:
History
(2009-311, s. 5.)
Cross References. - As to venue in juvenile proceedings, generally, see G.S. 7B-400.
CASE NOTES
Cited in In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).
§ 7B-901. Initial dispositional hearing.
- The dispositional hearing shall take place immediately following the adjudicatory hearing and shall be concluded within 30 days of the conclusion of the adjudicatory hearing. The dispositional hearing may be informal and the court may consider written reports or other evidence concerning the needs of the juvenile. The juvenile and the juvenile's parent, guardian, or custodian shall have the right to present evidence, and they may advise the court concerning the disposition they believe to be in the best interests of the juvenile. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, including testimony or evidence from any person who is not a party, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.
- At the dispositional hearing, the court shall inquire as to the identity and location of any missing parent and whether paternity is at issue. The court shall include findings of the efforts undertaken to locate the missing parent and to serve that parent and efforts undertaken to establish paternity when paternity is an issue. The order may provide for specific efforts in determining the identity and location of any missing parent and specific efforts in establishing paternity. The court shall also inquire about efforts made to identify and notify relatives, parents, or other persons with legal custody of a sibling of the juvenile, as potential resources for placement or support.
-
If the disposition order places a juvenile in the custody of a county department of social services, the court shall direct that reasonable efforts for reunification as defined in G.S. 7B-101 shall not be required if the court makes written findings of
fact pertaining to any of the following, unless the court concludes that there is compelling evidence warranting continued reunification efforts:
-
A court of competent jurisdiction determines or has determined that aggravated circumstances exist because the parent has committed or encouraged the commission of, or allowed the continuation of, any of the following upon the juvenile:
- Sexual abuse.
- Chronic physical or emotional abuse.
- Torture.
- Abandonment.
- Chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction in the juvenile.
- Any other act, practice, or conduct that increased the enormity or added to the injurious consequences of the abuse or neglect.
- A court of competent jurisdiction has terminated involuntarily the parental rights of the parent to another child of the parent.
- A court of competent jurisdiction determines or has determined that (i) the parent has committed murder or voluntary manslaughter of another child of the parent; (ii) has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent; (iii) has committed a felony assault resulting in serious bodily injury to the child or another child of the parent; (iv) has committed sexual abuse against the child or another child of the parent; or (v) has been required to register as a sex offender on any government-administered registry.
-
A court of competent jurisdiction determines or has determined that aggravated circumstances exist because the parent has committed or encouraged the commission of, or allowed the continuation of, any of the following upon the juvenile:
- When the court determines that reunification efforts are not required, the court shall order a permanent plan as soon as possible, after providing each party with a reasonable opportunity to prepare and present evidence. The court shall schedule a permanency planning hearing within 30 days to address the permanent plans in accordance with G.S. 7B-906.1 and G.S. 7B-906.2.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 18; 1998-202, s. 6; 1999-456, s. 60; 2003-62, s. 1; 2005-398, s. 4; 2007-276, s. 2; 2011-295, s. 7; 2013-129, s. 22; 2015-135, s. 2.4; 2015-136, s. 9; 2015-264, s. 34(a); 2016-94, s. 12C.1(g); 2018-86, s. 2; 2019-33, s. 8.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 22, applicable to actions filed or pending on or after October 1, 2013.
Session Laws 2015-135, s. 1.1, provides: "This act shall be known and may be cited as the 'Foster Care Family Act.' "
Session Laws 2015-136, s. 18, made the amendment to this section by Session Laws 2015-136, s. 9, applicable to actions filed or pending on or after October 1, 2015.
Session Laws 2018-86, s. 3, made the amendment of subsection (c) of this section by Session Laws 2018-86, s. 2, effective June 25, 2018, and applicable to disposition orders effective on or after that date.
Effect of Amendments. - Session Laws 2007-276, s. 2, effective October 1, 2007, substituted "the right" for "an opportunity" in the third sentence.
Session Laws 2013-129, s. 22, effective October 1, 2013, inserted "including testimony or evidence from any person who is not a party" in the fourth sentence of the first undesignated paragraph of the provisions of this section. For applicability, see editor's note.
Session Laws 2015-135, s. 2.4, effective October 1, 2015, inserted "parents, or other persons with legal custody of a sibling of the juvenile" in the last sentence in the second paragraph [now subsection (b)].
Session Laws 2015-136, s. 9, effective October 1, 2015, inserted "Initial" in the section heading; added subsection designations (a) and (b); deleted the last sentence in subsection (a), which read: "The court may exclude the public from the hearing unless the juvenile moves that the hearing be open, which motion shall be granted"; inserted "parents, or other persons with legal custody of a sibling of the juvenile" in the last sentence in subsection (b); added subsections (c) and (d). For applicability, see editor's note.
Session Laws 2015-264, s. 34(a), effective October 1, 2015, inserted "aggravated circumstances exist because" in subdivision (c)(1).
Session Laws 2016-94, s. 12C.1(g), effective July 1, 2016, added "unless the court concludes that there is compelling evidence warranting continued reunification efforts" at the end of the introductory language of subsection (c).
Session Laws 2018-86, s. 2, inserted "determines or" following "competent jurisdiction" in subdivisions (c)(1), and (c)(3), and inserted "terminates or" following "competent jurisdiction" in subdivision (c)(2). For effective date and applicability, see editor's note.
Session Laws 2019-33, s. 8, effective October 1, 2019, deleted "terminates or" preceding "has terminated" in subdivision (c)(2); and substituted "permanency planning" for "subsequent" in the second sentence of subsection (d).
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Applicability. - Subsection (c) did not apply to the initial disposition because the trial court's order did not place the child in the custody of a county department of social services. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).
Evidentiary Standards - Formal rules of evidence do not apply to dispositional hearings in abuse and neglect cases. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).
Trial court did not err in consolidating the adjudicatory and dispositional hearings for evidentiary purposes in the mother's case alleging abuse and neglect against her child, as there was no requirement that those two stages be conducted at separate hearings and the trial court still applied the proper, separate evidentiary standards, namely "clear and convincing evidence" for the adjudicatory stage and the "best interests of the child" standard for the disposition stage. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).
Trial court properly received various reports at a permanency planning hearing because (1) a mother did not object, waiving any contest, and (2) the North Carolina Rules of Evidence did not apply. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).
What Evidence Must Be Considered. - Whenever the trial court is determining the best interest of a child, any evidence which is competent and relevant to a showing of the best interest of that child must be heard and considered by the trial court, subject to the discretionary powers of the trial court to exclude cumulative testimony. Without hearing and considering such evidence, the trial court cannot make an informed and intelligent decision concerning the best interest of the child. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).
At a dispositional hearing the trial judge is not restricted to consideration of only those acts for which there had been an adjudication. If the information presented is determined by the trial judge to be reliable, accurate and competently obtained,
he may properly consider it. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Evidence Properly Considered. - Trial court could be presumed to have disregarded the incompetent evidence because the trial court made no findings pertaining to hearsay evidence in support of its adjudication of neglect and dismissed the sexual abuse allegation, and the trial court was authorized to consider the hearsay evidence and other evidence to show propensity in its dispositional order. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).
Trial court did not abuse its discretion by ceasing reunification efforts because its findings made clear that the trial court considered the evidence in light of whether reunification would be futile or inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Trial court did not abuse its discretion by ceasing reunification efforts because its findings made clear that the trial court considered the evidence in light of whether reunification would be futile or inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Corroborative Evidence Properly Excluded. - Trial court did not err under G.S. 7B-901 by excluding corroborative evidence from the mother's sister, regarding
statements made by the minor child about abuse by her father, which merely supported the testimony of the mother; additionally, the transcript was abounding with testimony regarding the abuse of the child by her father. In re J.S.,
182 N.C. App. 79, 641 S.E.2d 395 (2007).
Dispositional court must make a finding that a court of competent jurisdiction has determined that the parent allowed one of the aggravating circumstances to occur, and if a trial court wishes to cease reunification efforts pursuant to one particular
subsection, it must make findings at disposition that a court of competent jurisdiction has already determined that the parent allowed the continuation of chronic or toxic exposure to alcohol or controlled substances that causes
impairment of or addiction in the juvenile. In re G.T., 250 N.C. App. 50, 791 S.E.2d 274 (2016), aff'd, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (N.C. 2017).
Trial courts may properly consider all written reports and materials submitted in connection with dispositional proceedings. In re Shue, 63 N.C. App. 76, 303 S.E.2d 636 (1983), modified, 311 N.C. 586,
319 S.E.2d 567 (1984).
Admissibility of Psychological Reports. - The clear intent of the legislature is that a hearing upon a motion for review is in the nature of a dispositional hearing rather than an adjudicatory hearing, and that the formal Rules of Evidence, G.S. 8C-1, do not apply. Therefore, the trial court could properly consider written psychological reports in determining on motion brought by parents whose parental rights had been terminated under former G.S. 7A-289.34 (see now 7B-1113), whether the needs of children would be best served by modification of its previous orders concerning visitation. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985).
Trial court did not err in considering the psychological evaluation of the mother in reaching its decision on disposition in which counseling for the child. In re T.M., 180 N.C. App. 539, 638 S.E.2d
236 (2006).
Emotional Damage. - Trial court did not err in its adjudicating a mother's daughter abused or in its disposition. In light of false allegations of abuse which the trial court found the mother made against the father, the appellate court could not conclude that the trial court erred in providing clarity in its order when it identified the mother as the parent who created or allowed to be created serious emotional damage. In re K.W., - N.C. App. - , 846 S.E.2d 584 (2020).
Consideration of Unadjudicated Acts Unrelated to Petition. - Trial courts giving consideration at a dispositional hearing to unadjudicated acts allegedly committed by a juvenile, unrelated to that for which he stands petitioned, must first determine that such information is reliable and accurate and that it was competently obtained. This does not mean that a full "trial" must be held to make the required determination about the unrelated acts. The trial court should have wide discretion in making the required determination from the sources available to it, but it must make the determination. In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979).
This section permits the use of unadjudicated acts as evidence to be considered for disposition. In re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983).
Cross-Examination as to Prior Unadjudicated Acts Not Irrelevant. - Cross-examination of juvenile at dispositional hearing about twice running away from county receiving home was not irrelevant merely because the acts about which she was questioned occurred
prior to the delinquent act for which she was placed on probation and nothing in the record indicated that she had been adjudicated undisciplined for these acts. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Effect of Failure to Hold Hearing. - Where the judge held no dispositional hearing and denied juvenile the opportunity to present evidence as to disposition, and there was no evidence to support the findings made by the judge with respect to disposition,
commitment order would be reversed so that the court could conduct a dispositional hearing. In re Lail, 55 N.C. App. 238, 284 S.E.2d 731 (1981).
Required Findings. - Trial court made no finding that a court of competent jurisdiction has already determined that the parent allowed the continuation of chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction
in the juvenile; the specific findings related to the child's exposure to controlled substances were not sufficient to sustain an ultimate finding under the statute and the trial court erroneously concluded that reasonable reunification
efforts had to cease. In re G.T., 250 N.C. App. 50, 791 S.E.2d 274 (2016), aff'd, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (N.C. 2017).
No Findings When Statute Did Not Apply. - Order contained no findings under G.S. 7B-901(c) as that subsection did not apply since the child was not placed
in department of social services custody; thus, when establishing permanent plans, the trial court was required to make reunification a primary or secondary plan and require reunification efforts unless it found they would be unsuccessful
or inconsistent with the child's health or safety, and it could make that finding even though it was the first hearing. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).
Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay
where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).
Continuance at Request of Juvenile. - Former G.S. 7A-639 (see now G.S. 7B-808) and former G.S. 7A-640 (see now G.S. 7B-901)
made clear the legislative intent that the dispositional hearing must be continued for the juvenile respondent to present evidence when he requests such a continuance. This is particularly so in light of the provision of former
G.S. 7A-632 (see now G.S. 7B-803 and 7B-2406) that "The judge may continue at any time any case to allow additional factual evidence, social information or other
information needed in the best interest of the juvenile or in the interest of justice." In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979); In re Lail, 55 N.C. App. 238,
284 S.E.2d 731 (1981).
Burden on Parents and Department. - The language of G.S. 7A-640 (repealed, see now this section) and G.S. 7A-657 (see now 7B-906; repealed, see now G.S. 7B-906.1)
does not place any burden of proof upon either the parents or Department of Social Services during the dispositional hearing or the review hearing. The essential requirement at the dispositional hearing and the review hearing is
that sufficient evidence be presented to the trial court so that it can determine what is in the best interest of the child. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).
Evidence of Neglect Obtained From Agency and Guardian Ad Litem Reports Properly Admitted. - Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a
neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts
to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her
psychological problems, and (5) abuse and neglect adjudication regarding an older daughter; the trial court did not err by admitting the evidence of the DSS and guardian ad litem's reports, because the formal rules of evidence
did not apply to dispositional hearings. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005); In re C.B., 171 N.C. App. 341, 614 S.E.2d 579 (2005).
Prejudice Not Shown. - Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as: (1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c);
(4) the dispositional order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased
until the dispositional hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Termination of Visitation. - Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901,
G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful
parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Reunification Efforts. - In an adjudication, disposition, and permanency planning order concluding that the son was an abused juvenile, the trial court erred in relieving the county department of social services from making further reunification efforts
following the initial disposition hearing because the trial court's disposition did not contain any finding indicating that a previous court had determined one of the aggravating factors in this statute was present. In re J.M.
& J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).
Erroneous Adjudication. - Because the district court's erroneous adjudication directly resulted in the dismissal of the petition regarding the boys, an appropriate disposition order for the three boys was to be entered on remand. In re Q.A.,
245 N.C. App. 71, 781 S.E.2d 862 (2016).
Conducting Adjudications, Dispositional, and Permanency Planning Hearings on Same Day. - Trial court properly ceased reunification efforts between the child and his mother because the General Assembly had not proscribed conducting adjudications, dispositional,
and permanency planning hearings on the same day, and the trial court did not err in doing so. In re C.P., 258 N.C. App. 241, 812 S.E.2d 188 (2018).
Adjudication and Disposition Order a Nullity. - Since only a stipulation without any adjudication or rendering of the order, any action by the chief district court judge to cause a later prepared and unsigned draft order to be entered was ministerial; the written disposition portion of the order went beyond the retired judge's oral recitations, and because rendering and entering judgment was more than a ministerial task, the chief district court judge had no authority to sign the adjudication and disposition orders, which were a nullity. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).
Cited in In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003), appeal dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003); In re A.K., 360 N.C. 449,
628 S.E.2d 753 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re P.S., 242 N.C. App. 430, 775 S.E.2d 370 (2015); In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015); In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017); In re I.K., 250 N.C. App. 547, 818 S.E.2d 359 (2018).
§ 7B-902: Repealed by Session Laws 2011-295, s. 8, effective October 1, 2011, and applicable to actions filed on or pending on or after that date.
History
(1981, c. 371, s. 1; 1998-202, s. 6; 1999-456, s. 60; repealed by Session Laws 2011-295, s. 8, effective October 1, 2011.)
Editor's Note. - Former G.S. 7B-902 provided that nothing in this Article precluded the court from entering a consent order or judgment on a petition for abuse, neglect, or dependency under certain circumstances.
For current provision, see subsection (b1) of G.S. 7B-801.
§ 7B-903. Dispositional alternatives for abused, neglected, or dependent juvenile.
-
The following alternatives for disposition shall be available to any court exercising jurisdiction, and the court may combine any of the applicable alternatives when the court finds the disposition to be in the best interests of the juvenile:
- Dismiss the case or continue the case in order to allow the parent, guardian, custodian, caretaker or others to take appropriate action.
- Require that the juvenile be supervised in the juvenile's own home by the department of social services in the juvenile's county or by another individual as may be available to the court, subject to conditions applicable to the parent, guardian, custodian, or caretaker as the court may specify.
- Repealed by Session Laws 2015-136, s. 10, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
- Place the juvenile in the custody of a parent, relative, private agency offering placement services, or some other suitable person. If the court determines that the juvenile should be placed in the custody of an individual other than a parent, the court shall verify that the person receiving custody of the juvenile understands the legal significance of the placement and will have adequate resources to care appropriately for the juvenile. The fact that the prospective custodian has provided a stable placement for the juvenile for at least six consecutive months is evidence that the person has adequate resources.
- Appoint a guardian of the person for the juvenile as provided in G.S. 7B-600.
- Place the juvenile in the custody of the department of social services in the county of the juvenile's residence. In the case of a juvenile who has legal residence outside the State, the court may place the juvenile in the physical custody of the department of social services in the county where the juvenile is found so that agency may return the juvenile to the responsible authorities in the juvenile's home state.
- In placing a juvenile in out-of-home care under this section, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile. In placing a juvenile in out-of-home care under this section, the court shall also consider whether it is in the juvenile's best interest to remain in the juvenile's community of residence. Placement of a juvenile with a relative outside of this State must be in accordance with the Interstate Compact on the Placement of Children.
- An order under this section placing or continuing the placement of the juvenile in out-of-home care shall contain a finding that the juvenile's continuation in or return to the juvenile's own home would be contrary to the juvenile's health and safety.
- An order under this section placing the juvenile in out-of-home care shall contain specific findings as to whether the department has made reasonable efforts to prevent the need for placement of the juvenile. In determining whether efforts to prevent the placement of the juvenile were reasonable, the juvenile's health and safety shall be the paramount concern.
- When the court has found that a juvenile has suffered physical abuse and that the individual responsible for the abuse has a history of violent behavior against people, the court shall consider the opinion of the mental health professional who performed an evaluation under G.S. 7B-503(b) before returning the juvenile to the custody of that individual.
- Repealed by Session Laws 2015-136, s. 10, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
- The court may order that the juvenile be examined by a physician, psychiatrist, psychologist, or other qualified expert as may be needed for the court to determine the needs of the juvenile. Upon completion of the examination, the court shall conduct a hearing to determine whether the juvenile is in need of medical, surgical, psychiatric, psychological, or other treatment and who should pay the cost of the treatment. The county manager, or such person who shall be designated by the chairman of the county commissioners, of the juvenile's residence shall be notified of the hearing and allowed to be heard. Subject to G.S. 7B-903.1, if the court finds the juvenile to be in need of medical, surgical, psychiatric, psychological, or other treatment, the court shall permit the parent or other responsible persons to arrange for treatment. If the parent declines or is unable to make necessary arrangements, the court may order the needed treatment, surgery, or care and the court may order the parent to pay the cost of the care pursuant to G.S. 7B-904. If the court finds the parent is unable to pay the cost of treatment, the court shall order the county to arrange for treatment of the juvenile and to pay for the cost of the treatment. The county department of social services shall recommend the facility that will provide the juvenile with treatment.
- If the court determines that the juvenile may be mentally ill or developmentally disabled, the court may order the county department of social services to coordinate with the appropriate representative of the area mental health, developmental disabilities, and substance abuse services authority or other managed care organization responsible for managing public funds for mental health and developmental disabilities to develop a treatment plan for the juvenile. The court shall not commit a juvenile directly to a State hospital or developmental center for persons with intellectual and developmental disabilities and orders purporting to commit a juvenile directly to a State hospital or developmental center for persons with intellectual and developmental disabilities shall be void and of no effect. If the court determines that institutionalization is the best service for the juvenile, admission shall be with the voluntary consent of the parent, guardian, or custodian. If the parent, guardian, or custodian refuses to consent to admission to a mental hospital or developmental center for persons with intellectual and developmental disabilities, the signature and consent of the court may be substituted for that purpose. A State hospital or developmental center for persons with intellectual and developmental disabilities that refuses admission to a juvenile referred for admission by a court, or discharges a juvenile previously admitted on court referral prior to completion of treatment, shall submit to the court a written report setting out the reasons for denial of admission or discharge and setting out the juvenile's diagnosis, indications of mental illness or intellectual and developmental disabilities, indications of need for treatment, and a statement as to the location of any facility known to have a treatment program for the juvenile in question.
The court may find that efforts to prevent the need for the juvenile's placement were precluded by an immediate threat of harm to the juvenile. A finding that reasonable efforts were not made by a county department of social services shall not preclude the entry of an order authorizing the juvenile's placement when the court finds that placement is necessary for the protection of the juvenile.
History
(1979, c. 815, s. 1; 1981, c. 469, s. 19; 1985, c. 589, s. 5; c. 777, s. 1; 1985 (Reg. Sess., 1986), c. 863, s. 2; 1991, c. 636, s. 19(a); 1995 (Reg. Sess., 1996), c. 609, s. 3; 1997-516, s. 1A; 1998-202, s. 6; 1998-229, ss. 6, 23; 1999-318, s. 6; 1999-456, s. 60; 2002-164, s. 4.8; 2003-140, s. 9(b); 2015-136, s. 10; 2019-33, s. 7(b).)
Editor's Note. - Session Laws 2015-136, s. 18, made the amendment to this section by Session Laws 2015-136, s. 10, applicable to actions filed or pending on or after October 1, 2015.
Effect of Amendments. - Session Laws 2015-136, s. 10, effective October 1, 2015, substituted "Dismiss" for "The court may dismiss" in subdivision (a)(1), rewrote subdivision (a)(2), deleted former subdivision (a)(3), relating to medical or psychological examination to determine needs of a juvenile, and added subdivisions (a)(4) through (a)(6); added subsections (a1) through (a3); deleted former subsection (c), which read: "If the court determines that the juvenile shall be placed in the custody of an individual other than the parents, the court shall verify that the person receiving custody of the juvenile understands the legal significance of the placement and will have adequate resources to care appropriately for the juvenile"; and added subsections (d) and (e). For applicability, see Editor's note.
Session Laws 2019-33, s. 7(b), effective October 1, 2019, added the last sentence of subdivision (a)(4).
Legal Periodicals. - For note on the indigent parent's right to have counsel furnished by State in parental status termination proceedings, see 17 Wake Forest L. Rev. 961 (1981).
For note on community-based care for juvenile offenders, see 18 Wake Forest L. Rev. 610 (1982).
For article, "Coercive Governmental Intervention and the Family: A Comment on North Carolina's Proposed Standards," see 7 Campbell L. Rev. 145 (1984).
For comment, "The Child Abuse Amendments of 1984: Congress Is Calling North Carolina to Respond to the Baby Doe Dilemma," 20 Wake Forest L. Rev. 975 (1984).
For 1984 survey, "Termination of Parental Rights: Putting Love in Its Place," see 63 N.C.L. Rev. 1177 (1985).
For article, "Mental Health Care for Children: Before and During State Custody," see 13 Campbell L. Rev. 1 (1990).
For article, "The Parentless Child's Right to a Permanent Family," see 46 Wake Forest L. Rev. 1 (2011).
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
The medical evaluation of juveniles is of critical importance in proceedings involving allegations of abuse and neglect under the Juvenile Code. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).
The provision in subsection (6) of former G.S. 7A-286 that a juvenile judge may not commit a child directly to a mental institution was clearly designed to prevent conflicts with various statutes under former Chapter 122. In re Mikels, 31 N.C. App. 470, 230 S.E.2d 155 (1976).
Former Chapter 122 was written to provide constitutional defense, procedural, and evidentiary rules. To allow juvenile judges to commit minors to
mental institutions with a lesser standard than that set forth in former Chapter 122 would subject such commitments to constitutional challenge
as a deprivation of liberty without due process of law. In re Mikels, 31 N.C. App. 470, 230 S.E.2d 155 (1976).
The determination of "best interest" under former G.S. 7A-647(2)c. is a conclusion because it requires the exercise of judgment; appellate review of a trial court's conclusions of law is limited to whether they are supported by findings of fact. In re
Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
If the trial court uses the best interest of the child standard to award custody of a child to a parent, any misapplication of the constitutional presumption that a biological parent is a fit and proper person to exercise custody of her minor children
pursuant to Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), is without consequence. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d
237 (2004).
"Cost of care" does not include counsel fees for juvenile, which are governed by G.S. 7A-588 (see now G.S. 7B-603, 7B-2002). In re Wharton, 54 N.C. App. 447, 283 S.E.2d 528 (1981).
Disposition on Review of Custody Order. - During the review hearing of a trial placement pursuant to G.S. 7A-657 (see now G.S. 7B-906; repealed, see now
G.S. 7B-906.1), the trial court may, in its discretion, order the implementation of any dispositional alternative listed in former G.S. 7A-647. However, if
the trial court does not dismiss the case or continue the case pursuant to former G.S. 7A-657(1), then G.S. 7A-657 (see now G.S. 7B-906; repealed, see now
G.S. 7B-906.1) limits the trial court's options to entry of an order continuing the placement, or entry of an order restoring custody of the child to the parent(s)
from whom custody was taken, whichever is deemed to be in the best interest of the child. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).
Participation of Parent in Assessment or Treatment. - Former G.S. 7A-650(b1) (see now G.S. 7B-904, 7B-2702, 7B-2704) only authorizes the district court to order
the parent of a juvenile adjudicated as delinquent, undisciplined, abused, neglected, or dependent to participate in medical, psychiatric, psychological or other treatment ordered for the juvenile pursuant to former G.S. 7A-647(3).
Former G.S. 7A-650(b1) does not authorize the court to order a juvenile's parent to otherwise submit to medical, psychiatric, psychological or other assessment or treatment. In re Badzinski, 79 N.C. App. 250, 339 S.E.2d 80, cert. denied, 317 N.C. 703, 347 S.E.2d 35 (1986).
Evidence of prior neglect which led to an adjudication of neglect shows circumstances as they were and therefore is relevant to whether a change of circumstances has occurred since the court's order. In re Brenner, 83 N.C. App. 242, 350 S.E.2d 140 (1986).
Standard of Proof for Termination and Removal Distinguished. - There is a substantive difference between the quantum of adequate proof of neglect and dependency for purposes of termination and for purposes of removal. The most significant difference is
that while parental rights may not be terminated for threatened future harm, the Department of Social Services may obtain temporary custody of a child when there is a risk of neglect in the future. In re Evans,
81 N.C. App. 449, 344 S.E.2d 325 (1986).
Authority to Place Child in Custody of DSS. - Under former G.S. 7A-647, once a minor is adjudicated neglected, a judge has the authority to place the child in the custody of the Department of Social Services. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987); In re Kennedy, 103 N.C. App. 632, 406 S.E.2d 307 (1991).
Trial court did not err in placing the minor child in the custody of the county social services department despite the father's contention that the minor child could have been placed with relatives; no showing was made that suitable relatives existed, especially since the father's paternity was at issue, and thus placement with the paternal grandparents as suggested by the father might not be in the best interests of the minor child since the minor child might find that they were not the minor child's relatives after all. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).
Subsection (a)(6) was not available to be invoked in a termination of parental rights case because at all times during the matter, a child was found in New Hanover County, North Carolina, and North Carolina was her home state. In re N.P., - N.C. - , - S.E.2d - (Mar. 12, 2021).
The task at the temporary custody or removal stage is to determine whether the child is exposed to a substantial risk of physical injury because the parent is unable to provide adequate protection. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).
Court Must Consider Pertinent Factors Before Ordering Commitment. - Where the trial court's findings did not sufficiently address the needs of the juvenile, such as medical or psychological evaluation, school records, home evaluation, or a history of
parental neglect, and the court's order did not contain sufficient findings as to community resources that might be appropriate as noncustodial alternatives to commitment, case would be remanded for further consideration of these
pertinent factors. In re Cousin, 93 N.C. App. 224, 377 S.E.2d 275 (1989).
A finding of fact that mother was a fit and proper person to have custody of her child did not compel the conclusion that custody should be awarded to her, where the court also found that the best interests of the child required that custody remain in
others with whom the child was placed following a finding of dependency. In re Yow, 40 N.C. App. 688, 253 S.E.2d 647, cert. denied, 297 N.C. 610,
257 S.E.2d 223 (1979).
Attempt to Teach Mentally Retarded Child at Home. - Trial court did not err in finding that 15 year old with an IQ of 41, who had been taken out of public school and was being taught at home by his father, was neglected, in granting legal custody to the
Department of Social Services, and in ordering the child to be returned to public school. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).
Where neglected juvenile's custody changes to non-custodial parent, if a trial court determines such disposition to be in the best interests of the child, G.S. 7B-903,
there is no burden of proof at the dispositional hearing; the trial court must only consider the best interests of the child. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).
Removal of Child Upheld. - Evidence held sufficient to show that seven-year old child was exposed to a substantial risk of physical injury because of her mother's inability to maintain secure living arrangements for her, so as to permit the Department of Social Services to remove her from her mother's custody until such accommodations could be provided. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).
It was in child's best interest to continue in the custody of DSS pending mother's compliance with reunification measures where the child had lived in an environment injurious to her welfare, and where mother failed to comply with DSS's efforts to prevent removal. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
Trial court did not err in finding that returning children to their parents' custody would be contrary to their health, safety and welfare. because the trial court's findings of fact clearly established the children lived in an environment that was injurious
to their welfare given that the father and mother failed to take the children for medical treatment and inappropriately disciplined one of the children; returning the children to the parents' home was not in the children's best
interests. In re S.H., 217 N.C. App. 140, 719 S.E.2d 157 (2011).
Modification Upheld. - Where court had previously deemed it in the best interest of minor children who had been adjudicated neglected that mother comply with certain orders of the court, the court acted with full statutory authority when it later conducted
a hearing upon social worker's subsequent motion and determined that mother's refusal to cooperate with community-level services and orders applicable to her constituted a "change of circumstances" affecting the best interest of
the children, sufficient to require modification of prior custody orders. In re Brenner, 83 N.C. App. 242, 350 S.E.2d 140 (1986).
Termination of Visitation. - Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901,
G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful
parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Placement with Parent. - Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child's mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support
to the child's mother; however, further findings were required under G.S. 7B-904(d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).
Award of Custody to Foster Parents. - Having acquired subject matter jurisdiction, trial court, guided by the best interests of the child, had broad dispositional powers, including the power to award legal custody of child to its foster parents. In re
Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).
Placement With Relatives. - When, in a dependency proceeding, a trial court placed a child's custody with the child's foster parents without finding it was contrary to the child's best interests to place her with willing relatives, pursuant to G.S. 7B-903(a)(2)c, this was error as: (1) this statutory requirement applied to the review hearing at which the trial court entered its custody order because G.S. 7B-906 (repealed, see now G.S. 7B-906.1), which governed the hearing, incorporated dispositional alternatives in G.S. 7B-903, which gave priority to placing a child with a suitable relative; (2) 42 U.S.C.S. § 671(a)(19) required that, as a condition for receiving federal foster care funds, a state had to have a foster care plan that gave preference to placement with a relative; (3) G.S. 7B-505 required the trial court, in entering a nonsecure custody order, to first consider the child's placement with a relative, and G.S. 7B-506(h) continued this requirement at each hearing to determine the need for the child's continued custody outside of her home, so the general assembly intended to apply this requirement to reviews of custody placements; and (4) exempting review hearings from the requirement to first consider placement with relatives risked undermining the Interstate Compact on the Placement of Children (ICPC), G.S. 7B-3800, as home studies of out-of-state relatives required by the ICPC were often not completed until a review hearing was held. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).
Trial court did not err by awarding joint legal custody to a child's father and her maternal aunt and uncle under G.S. 7B-907(f) (repealed, see now G.S. 7B-906.1) because according to the plain language of former G.S. 7B-907(c) and G.S. 7B-903(a), there was no prohibition on an award of joint legal custody to both a relative and a parent. In re B.G., 197 N.C. App. 570, 677 S.E.2d 549 (2009), dismissed 701 S.E.2d 324, 2010 N.C. App. LEXIS 2020 (N.C. Ct. App. 2010).
Pursuant to G.S. 7B-3800 and G.S. 7B-903(a)(2)(c), a trial court's dispositional order that placed a juvenile with her maternal great-grandmother in South Carolina, despite the lack of approval of the great-grandmother's home by South Carolina authorities, violated the Interstate Compact on the Placement of Children. In the Matter of V.A., 221 N.C. App. 637, 727 S.E.2d 901 (2012).
Trial court properly declined to place a mother's children with relatives because it was apparent from the court's exhaustive findings of fact that (1) the court considered several relative placements but no suitable option was available, and, (2) where potentially available, the court considered it not in the children's best interests to place the children with the relative. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).
Trial court erred in granting guardianship of a father's child to a non-relative because the father had standing to raise the issue on appeal inasmuch as the paternal grandmother was never a party in the juvenile case, the father was asserting his own interest to have the court consider a potentially viable relative placement for the child before granting guardianship to a non-relative, the question of whether the grandmother should have been given priority placement consideration over a non-relative had never been addressed by the court, the trial court specifically found that both parents opposed appointing a non-relative guardian for the child and wished for the child to be placed with her grandmother if the court determined she could not return to their home. In re D.S., 260 N.C. App. 194, 817 S.E.2d 901 (2018).
Because the county department of human services (DHS) had not received notification of the proposed placement of the children from the appropriate Arizona agency prior to entry of the permanency planning order their aunt and uncle in Arizona, the trial court was not authorized to award custody of the children to their aunt and uncle in Arizona; the Interstate Compact on the Placement of Children required that Arizona notify DHS the proposed placement of the children did not appear to be contrary to their interests. In re J.D.M.-J., 260 N.C. App. 56, 817 S.E.2d 755 (2018).
There was not an appropriate relative placement available for the children, as the uncontroverted evidence and findings established that a maternal great aunt and a half-sister were not able to provide proper care and supervision of the juvenile in a safe home. In re N.K., - N.C. App. - , - S.E.2d - (Oct. 20, 2020).
Failure to Consider Placement with Relatives. - Trial court was statutorily required to consider and place the child with a family member, who was willing and able to provide a safe home for her, before consideration of a juvenile's placement with a nonrelative and the court erred when it disregarded the grandmother's and father's wishes and proceeded to order guardianship with a nonrelative. In re A.N.T., - N.C. App. - , 845 S.E.2d 176 (2020).
Placement With Non-Relatives. - Trial court did not abuse its discretion by placing a mother's children in a non-relative placement because either no suitable relative was available or it was not in the children's best interests to place them with a relative,
and reunification efforts would be inconsistent with their health, safety and need for a permanent home within a reasonable period of time. In re T.H., 232 N.C. App. 16, 753
S.E.2d 207 (2014).
Authority To Order Treatment. - The trial court acted within the scope of former G.S. 7A-647(3) when it ordered the County to pay the costs of a juvenile's care in an existing institution after considering all alternative programs presented to the court
and their relative costs. In re D.R.D., 127 N.C. App. 296, 488 S.E.2d 842 (1997).
District Court Not Authorized to Require Creation of Foster Home. - The district court is not authorized to require a county department of social services, either by itself or in conjunction with another agency, to implement the creation of a foster home
with appropriate staff, wherein juveniles might be permanently domiciled for program treatment and delivery of services. In re Wharton, 305 N.C. 565, 290 S.E.2d 688 (1982).
Dispositional Alternatives. - While a trial court had the authority under G.S. 7B-906 (repealed, see now G.S. 7B-906.1)
to issue a dispositional order in a child custody case, and while that court had had the authority under G.S. 7B-906(g) (repealed, see now G.S. 7B-906.1)
to place custody of the child with someone other than a parent, the court erred in giving physical custody to the mother but ordering the child's "physical placement" to be with her maternal grandfather. G.S. 7B-903(a) specified the dispositional alternatives that were available in a custody matter, a "physical placement" with someone who did not have custody was not a permissible alternative under G.S. 7B-903(a),
and G.S. 7B-906(g) (repealed, see now G.S. 7B-906.1) contemplated that the person with whom the child was to live was a person who had custody of the child.
In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).
Finding of Proper Care and Supervision. - Before returning a child to the custody of a parent from whose custody the child is originally taken, a trial court must find that the child will receive from that parent the proper care and supervision in a safe
home. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).
Change of Custody Improper. - Given that the department of social services was prohibited under G.S. 7B-903(a)(2)(c) from returning physical custody of
a child, to the parent from whom the child had been taken, without a hearing in which a court found that the child would receive proper care in a safe home, as defined in G.S. 7B-101(19),
a trial court erred in changing custody of a child from a father to the mother because the court was required to find, but did not find, that the child would receive from the mother the necessary proper care and supervision in
a safe home, particularly in light of prior evidence that domestic violence had occurred in the home. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).
Insufficient Findings. - While a court had the power under G.S. 7B-903 to enter an order transferring the custody of a minor child from her father to her mother, there was no evidence in the record in a proceeding on the parties' cross-motions for contempt that supported the finding that transferring custody to the mother was in the child's best interests. It had been found in an earlier proceeding that the mother was abusing prescription drugs, that her husband had been physically abusing her, and that loaded weapons were kept in their home, yet in the contempt proceeding, the trial court made no findings addressing a prior adjudication in which it had been determined that the child was neglected, and no findings were made as to whether efforts to mend the mother's relationship with her husband had been resolved. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).
Trial court erred by placing children in the custody of the county department of social services because its dispositional order failed to contain a finding required for the adoption of one of the dispositional alternatives outlined in
G.S. 7B-903(a)(2); G.S. 7B-903(a) requires that a finding that the juvenile needs
more adequate care or supervision or needs placement be made as a precondition for the adoption of one of the dispositional alternatives outlined in G.S. 7B-903(a)(2).
In re S.H., 217 N.C. App. 140, 719 S.E.2d 157 (2011).
Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).
Cited in In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235,
659 S.E.2d 738 (2008); In re J.V., 198 N.C. App. 108, 679 S.E.2d 843 (2009); In re P.O., 207 N.C. App. 35, 698 S.E.2d 525 (2010); In re J.W., 241 N.C. App. 44, 772 S.E.2d 249 (2015); In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).
Opinions of Attorney General
Editor's Note. - The opinions below were rendered prior to enactment of this Chapter.
Conflicting Provisions. - Former G.S. 7A-647(2), as amended by Session Laws 1985, c. 777, appeared on its face to be in conflict with 20 U.S.C. § 1415 and with G.S. 115C-106 (repealed), 115C-114 (repealed), and former 115C-116 (repealed), to the extent that it authorizes the county director of social services to make educational decisions for a handicapped child in the custody of a department of social services. This apparent conflict should be resolved by giving full effect to 20 U.S.C. § 1415. See opinion of Attorney General to Mr. Johnnie Ellerbe, Consultant, Division for Exceptional Children, State Department of Public Instruction, 55 N.C.A.G. 94 (1986).
The provisions of Article 9, Chapter 115C should be considered as an exception to the provisions of former G.S. 7A-647(2)c to the extent those
statutes are in conflict. See opinion of Attorney General to Mr. Johnnie Ellerbe, Consultant, Division for Exceptional Children, State Department of Public Instruction, 55 N.C.A.G. 94 (1986).
Duration of Child Custody by County Social Services Department. - See opinion of Attorney General to Mrs. Margaret H. Coman, 40 N.C.A.G. 311 (1970), rendered under former G.S. 7A-286.
Articles 4 and 5A of former Chapter 122 did not revoke the authority which subdivision (6) of former G.S. 7A-286 vested in a district court judge
exercising juvenile jurisdiction to secure placement of a juvenile needing residential care and treatment for mental impairment to an appropriate facility. See opinion of Attorney General to Mr. R. Patterson Webb, Division of Mental
Health, Department of Human Resources, 43 N.C.A.G. 163 (1973), rendered under former G.S. 7A-286.
Section Does Not Authorize District Court Judge to Commit Juvenile to Center for Mentally Retarded. - See opinion of Attorney General to Dr. Ann F. Wolfe, Division of Mental Health Services, 44 N.C.A.G. 126 (1974), rendered under former G.S. 7A-286.
Educational Interests of Handicapped Child. - In those situations where the parents of a handicapped child are unavailable or unknown and the child is a ward of the State, the responsibility and authority for representing that child's educational interests
rests with a surrogate parent, and not with the county director of social services. Further, former G.S. 115C-116(c) (repealed) and 20 U.S.C.
§
1415(b)(1)(B) prohibit the county director of social services or any employee of a department of social services involved in the education or care of such child from serving as a surrogate parent in such circumstances.
See opinion of Attorney General to Mr. Johnnie Ellerbe, Consultant, Division for Exceptional Children, State Department of Public Instruction, 55 N.C.A.G. 94 (1986).
§ 7B-903.1. Juvenile placed in custody of a department of social services.
- Except as prohibited by federal law, the director of a county department of social services with custody of a juvenile shall be authorized to make decisions about matters not addressed herein that are generally made by a juvenile's custodian, including, but not limited to, educational decisions and consenting to the sharing of the juvenile's information. The court may delegate any part of this authority to the juvenile's parent, foster parent, or another individual.
- When a juvenile is in the custody or placement responsibility of a county department of social services, the placement provider may, in accordance with G.S. 131D-10.2A, provide or withhold permission, without prior approval of the court or county department of social services, to allow a juvenile to participate in normal childhood activities. If such authorization is not in the juvenile's best interest, the court shall set out alternative parameters for approving normal childhood activities.
- If a juvenile is removed from the home and placed in the custody or placement responsibility of a county department of social services, the director shall not allow unsupervised visitation with or return physical custody of the juvenile to the parent, guardian, custodian, or caretaker without a hearing at which the court finds that the juvenile will receive proper care and supervision in a safe home. Before a county department of social services may recommend return of physical custody of the juvenile to the parent, guardian, custodian, or caretaker from whom the juvenile was removed, a county department of social services shall first observe that parent, guardian, custodian, or caretaker with the juvenile for at least two visits that support a recommendation to return physical custody. Each observation visit shall consist of an observation of not less than one hour with the juvenile, and each observation visit shall be conducted at least seven days apart. A department of social services shall provide documentation of any observation visits that it conducts to the court for its consideration as to whether physical custody should be returned to the parent, guardian, custodian, or caretaker from whom the juvenile was removed.
- When a county department of social services having custody or placement responsibility of a juvenile intends to change the juvenile's placement, the department shall give the guardian ad litem for the juvenile notice of its intention unless precluded by emergency circumstances from doing so. Where emergency circumstances exist, the department of social services shall notify the guardian ad litem or the attorney advocate within 72 hours of the placement change, unless local rules require notification within a shorter time period.
- When a juvenile is placed in the custody of a county department of social services, the provisions of G.S. 7B-505.1 apply.
History
(2015-135, s. 2.5; 2015-136, s. 11; 2017-41, s. 10.)
Editor's Note. - Enactments by Session Laws 2015-135, s. 2.5, and Session Laws 2015-136, s. 11, were identical, except that Session Laws 2015-136, s. 11, also added a subsection (e).
Session Laws 2015-135, s. 1.1, provides: "This act shall be known and may be cited as the 'Foster Care Family Act.' "
Session Laws 2015-135, s. 6.1, made subsections (a)-(d) of this section effective October 1, 2015.
Session Laws 2015-136, s. 18, made this section effective October 1, 2015, and applicable to actions filed or pending on or after that date.
Effect of Amendments. - Session Laws 2017-41, s. 10, effective June 21, 2017, added the last three sentences of subsection (c).
§ 7B-904. Authority over parents of juvenile adjudicated as abused, neglected, or dependent.
- If the court orders medical, surgical, psychiatric, psychological, or other treatment pursuant to G.S. 7B-903, the court may order the parent or other responsible parties to pay the cost of the treatment or care ordered.
- At the dispositional hearing or a subsequent hearing if the court finds that it is in the best interests of the juvenile for the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care to be directly involved in the juvenile's treatment, the court may order the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care to participate in medical, psychiatric, psychological, or other treatment of the juvenile. The cost of the treatment shall be paid pursuant to G.S. 7B-903.
- At the dispositional hearing or a subsequent hearing the court may determine whether the best interests of the juvenile require that the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication or to the court's decision to remove custody of the juvenile from the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care. If the court finds that the best interests of the juvenile require the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care undergo treatment, it may order that individual to comply with a plan of treatment approved by the court or condition legal custody or physical placement of the juvenile with the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care upon that individual's compliance with the plan of treatment. The court may order the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care to pay the cost of treatment ordered pursuant to this subsection. In cases in which the court has conditioned legal custody or physical placement of the juvenile with the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care upon compliance with a plan of treatment, the court may charge the cost of the treatment to the county of the juvenile's residence if the court finds the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care is unable to pay the cost of the treatment. In all other cases, if the court finds the parent, guardian, custodian, stepparent, adult member of the juvenile's household, or adult relative entrusted with the juvenile's care is unable to pay the cost of the treatment ordered pursuant to this subsection, the court may order that individual to receive treatment currently available from the area mental health program that serves the parent's catchment area.
- At the dispositional hearing or a subsequent hearing, when legal custody of a juvenile is vested in someone other than the juvenile's parent, if the court finds that the parent is able to do so, the court may order that the parent pay a reasonable sum that will cover, in whole or in part, the support of the juvenile after the order is entered. If the court requires the payment of child support, the amount of the payments shall be determined as provided in G.S. 50-13.4(c). If the court places a juvenile in the custody of a county department of social services and if the court finds that the parent is unable to pay the cost of the support required by the juvenile, the cost shall be paid by the county department of social services in whose custody the juvenile is placed, provided the juvenile is not receiving care in an institution owned or operated by the State or federal government or any subdivision thereof.
-
At the dispositional hearing or a subsequent hearing, the court may order the parent, guardian, custodian, or caretaker served with a copy of the summons pursuant to G.S. 7B-407 to do any of the following:
- Attend and participate in parental responsibility classes if those classes are available in the judicial district in which the parent, guardian, custodian, or caretaker resides.
- Provide, to the extent that person is able to do so, transportation for the juvenile to keep appointments for medical, psychiatric, psychological, or other treatment ordered by the court if the juvenile remains in or is returned to the home.
- Take appropriate steps to remedy conditions in the home that led to or contributed to the juvenile's adjudication or to the court's decision to remove custody of the juvenile from the parent, guardian, custodian, or caretaker.
- Upon motion of a party or upon the court's own motion, the court may issue an order directing the parent, guardian, custodian, or caretaker served with a copy of the summons pursuant to G.S. 7B-407 to appear and show cause why the parent, guardian, custodian, or caretaker should not be found or held in civil or criminal contempt for willfully failing to comply with an order of the court. Chapter 5A of the General Statutes shall govern contempt proceedings initiated pursuant to this section.
History
(1979, c. 815, s. 1; 1983, c. 837, ss. 2, 3; 1987, c. 598, s. 2; 1989, c. 218; c. 529, s. 7; 1995, c. 328, s. 2; 1995 (Reg. Sess., 1996), c. 609, s. 4; 1997-456, s. 1; 1998-202, s. 6; 1999-318, s. 7; 1999-456, s. 60; 2001-208, s. 3; 2001-487, s. 101.)
CASE NOTES
Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.
Construction In Relation to Termination. - G.S. 7B-904(d1)(3) and G.S. 7B-906.1 appear
to contemplate an ongoing examination of the circumstances that surrounded the juvenile's removal from the home and the steps that need to be taken in order to remediate both the direct and the indirect underlying causes of the
juvenile's removal from the parental home' the "conditions of removal" contemplated by G.S. 7B-1111(a)(2) include all of the factors that directly or indirectly
contributed to causing the juvenile's removal from the parental home. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).
Authority of the Court. - The trial court did not have authority, pursuant to this section, to order respondent to "secure and maintain safe, stable housing and employment" nor to contact a child support enforcement department. This section is the trial court's only source of authority over the parent of a juvenile adjudicated abused or neglected, and the trial court may not order a parent to undergo any course of conduct not provided for in the statute. In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).
Pursuant to G.S. 7B-904(d1)(3), a trial court did not exceed its authority in ordering the mother to comply with its directive that the father not have any contact with the son, as the infant had suffered a severe head trauma while in the father's sole care, which could not have been attributed to the infant's having rolled off the couch, as the father claimed. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).
Trial court erred in ordering a father to contact the Child Support Enforcement Agency and to pay child support for the benefit of the children as G.S. 7B-904(d) did not provide the trial court with authority to order the father to contact a child support enforcement authority. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817 (2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).
Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child's mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support to the child's mother; however, further findings were required under G.S. 7B-904(d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).
Trial court erred in ordering a father to obtain and maintain stable employment under G.S. 7B-904 as nothing suggested that the father's employment situation, or lack thereof, led to or contributed to the juvenile's adjudication as a neglected child. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).
In a case in which the district court properly determined that the younger child was abused and that both children were neglected, the district court lacked the authority to order the mother to maintain stable housing and employment because nothing in the district court's findings of fact suggested that the mother's lack of employment or unstable housing contributed to the children's removal from her custody as the primary factors which led to the removal of the children in November 2013 were the mother's inability to provide proper care and discipline for the children, in that she abused the younger child and neglected both children. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).
Court's dispositional order requiring a child's father to maintain steady employment and obtain a domestic violence assessment and follow the assessment's recommendations did not exceed the court's authority because there was a nexus between the order's
requirements and the reasons for the child's removal from the father's custody. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015).
Trial Judge's Authority. - General Assembly clearly contemplated that, in the event that a juvenile is found to have been abused, neglected, or dependent, the trial judge has the authority to order a parent to take any step needed to remediate the conditions
that "led to or contributed to" either the juvenile's adjudication or the decision to divest the parent of custody. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).
Participation of Parent in Assessment or Treatment. - Former G.S. 7A-650(b1) only authorizes the district court to order the parent of a juvenile adjudicated as delinquent, undisciplined, abused, neglected, or dependent to participate in medical, psychiatric, psychological or other treatment ordered for the juvenile pursuant to former G.S. 7A-647(3). Former G.S. 7A-650(b1) does not authorize the court to order a juvenile's parent to otherwise submit to medical, psychiatric, psychological or other assessment or treatment. In re Badzinski, 79 N.C. App. 250, 339 S.E.2d 80 (1986).
Former G.S. 7A-650(b1) of this section does not authorize a court to order a parent of a juvenile who has been adjudicated as dependent or neglected to submit to medical, psychiatric, psychological or other assessment or treatment. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).
Trial court properly ordered a father to undergo a psychological evaluation, have a substance abuse assessment, and enroll in parenting classes, as it was in the children's best interest. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817 (2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).
The trial court properly ordered respondent to undergo a psychological evaluation and possible treatment where the evidence indicated that she knew that her daughter was being abused by her father and lied about it. In re Cogdill,
137 N.C. App. 504, 528 S.E.2d 600 (2000).
The determination of reunification requirements is a conclusion of law because it requires the application of legal principles pursuant to former G.S. 7A-650(b2); appellate review of a trial court's conclusions of law is limited to whether they are supported
by findings of fact. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
Support payments ordered pursuant to former G.S. 7A-650(c) should be based on the interplay of the trial court's conclusions as to the amount of support necessary to meet the needs of the child and the ability of the parents to provide that amount. The
court's conclusions should in turn be based on findings of fact sufficiently specific to show that the court gave due regard to the relevant factors in G.S. 50-13.4(c) and any other relevant factors of the particular case. When such findings are not made, the order should be vacated, because appellate courts have no means of determining whether the order is supported by the evidence and is based
on the proper considerations. In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23 (1985).
Conditions Imposed on Parents Were Reasonable. - Conditions imposed on the parents of the neglected children who were removed due to domestic violence were reasonably related to aiding the parents in remedying the conditions which led to the children's
removal where the parents were required to comply with the recommendations of mental health professional, medical professionals supplying prescription medications, substance abuse evaluations, drug screens and the child medical
evaluation, and provide copies of deeds or leases, and employment or income records. In re A.R., 227 N.C. App. 518, 742 S.E.2d 629 (2013).
Applied in In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).
Cited in In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010); In re D.L.W., 241 N.C. App. 32, 773 S.E.2d 504 (2015); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).
§ 7B-905. Dispositional order.
- The dispositional order shall be in writing, signed, and entered no later than 30 days from the completion of the hearing, and shall contain appropriate findings of fact and conclusions of law. The court shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition including the kind, duration, and the person who is responsible for carrying out the disposition and the person or agency in whom custody is vested. If the order is not entered within 30 days following completion of the hearing, the clerk of court for juvenile matters shall schedule a subsequent hearing at the first session of court scheduled for the hearing of juvenile matters following the 30-day period to determine and explain the reason for the delay and to obtain any needed clarification as to the contents of the order. The order shall be entered within 10 days of the subsequent hearing required by this subsection.
- A dispositional order under which a juvenile is removed from the custody of a parent, guardian, custodian, or caretaker shall direct that the review hearing required by G.S. 7B-906.1 be held within 90 days from of the date of the dispositional hearing and, if practicable, shall set the date and time for the review hearing.
- , (d) Repealed by Session Laws 2015-136, s. 12, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
History
(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 10; 1991, c. 434, s. 1; 1997-390, s. 8; 1998-202, s. 6; 1998-229, s. 24; 1999-456, s. 60; 2001-208, ss. 4, 18; 2001-487, s. 101; 2005-398, s. 5; 2011-295, s. 9; 2013-129, s. 23; 2015-136, s. 12.)
Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 23, applicable to actions filed or pending on or after October 1, 2013.
Session Laws 2015-136, s. 18, made the repeal of former subsections (c) and (d) of this section by Session Laws 2015-136, s. 12, applicable to actions filed or pending on or after October 1, 2015.
Effect of Amendments. - Session Laws 2013-129, s. 23, effective October 1, 2013, substituted "G.S. 7B-906.1" for "G.S. 7B-906" in subsection (b); and deleted the former last four sentences of subsection (c). For applicability, see editor's note.
Session Laws 2015-136, s. 12, effective October 1, 2015, deleted subsections (c) and (d), relating to statutory compliance, and change in placement for juvenile. For applicability, see editor's note.
CASE NOTES
Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.
Combined Hearing for Permanency Planning And Disposition. - Because a father did not object when the department of social services informed the trial court that the hearing was noticed on for both permanency planning and disposition, and it wanted to
proceed with both, he has waived appellate review of the propriety of the combined hearing; the father received multiple notices in the weeks and months before the hearing that the trial court would be conducting a combined adjudication,
disposition, and permanency planning hearing. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).
Procedural validity of a dispositional order would be evaluated in light of the North Carolina Rules of Civil Procedure, G.S. 1A-1, and
this section. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Agency Had Standing Under Nonsecure Custody Order. - DSS had standing to file a termination of parental rights petition as it had been granted indefinite custody of a child under a nonsecure custody order issued under G.S. 7B-506(a),
and G.S. 7B-1103(a)(3) did not limit standing to parties granted custody by an order entered pursuant to G.S. 7B-905,
but required only that DSS be granted custody by a court of competent jurisdiction. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).
Former G.S.7A-651 does not require the trial judge to announce his findings and conclusions in open court, mandating only that the terms of the disposition be stated in open court with "particularity." In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Late Filing of Adjudication and Disposition Orders Not Grounds for Reversal Where No Prejudice. - Court's failure to file child neglect adjudication and disposition orders within 30 days as required under respectively, G.S. 7B- 807(b) and G.S. 7B-905(a), was not grounds for reversal because the mother could not show how she was prejudiced by the late filing. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).
Mother did not establish that a trial court's late entry of an order under G.S. 7B-905(a) in a neglect and dependency proceeding prejudiced the mother, as the delay did not preclude the reunification of the children and the mother. In re T.S., 178 N.C. App. 110, 631 S.E.2d 19 (2006), aff'd, 361 N.C. 231, 641 S.E.2d 302 (2007).
Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as: (1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c);
(4) the dispositional order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased
until the dispositional hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Time Limit Affects Child's Welfare. - Regularly allowing bureaucratic failure to be the sole cause of delay in the entry of orders (pursuant to G.S. 7B-807(b) and G.S. 7B-905(a)) affecting a child's welfare is anathema to the principles underlying the Juvenile Code. In re T.H.T., 362 N.C. 446,
665 S.E.2d 54 (2008).
Failure to Provide for Visitation. - Trial court erred in failing to provide for visitation between the mother and the mother's older two children who were placed with the father due to the mother's neglect; the trial court was required by statute to provide for appropriate visitation as would be in the best interests of the minor children, consistent with their health and safety, and the trial court's failure to so provide meant the trial court had to consider the issue of visitation upon remand of the case to it. In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007).
When a son was found to be abused and the son and a daughter were found to be neglected, a trial court's dispositional order did not comply with G.S. 7B-905(c) because the order neither provided for visitation between the children and the children's parents nor found that such visitation was not in the children's best interests. In re C.M., 198 N.C. App. 53, 678 S.E.2d 794 (2009).
In a child neglect hearing in which the trial court did not include a visitation plan by the mother, as required by G.S. 7B-905(c), the mother could not be heard to complain on appeal since the trial court gave the mother exactly what she wanted. It was clear from the trial court's unchallenged findings of fact that the mother had declined to engage in visitation with the two children, had expressly stated that she did not want to see them, and was generally unwilling to do anything to promote reunification between herself and the children; the mother could have hardly made her lack of interest in visiting with the children clearer. In re K.C., 199 N.C. App. 557, 681 S.E.2d 559 (2009).
Visitation provisions of a court order failed to comply with the requirements of G.S. 7B-905(c) by failing to address "the time, place, and conditions under which visitation may be exercised." In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010).
Trial court improperly incorporated the allegations from the juvenile petition as its findings of fact under G.S. 7B-807(b) in its adjudication of the child's neglect or dependency due to the mother's absence from home. The trial court also erred in failing to address visitation as required by G.S. 7B-905(c). In the Matter of S.C.R., 217 N.C. App. 166, 718 S.E.2d 709 (2011).
Trial court failed to adopt a proper visitation plan as the plan did not set forth the time, place, or conditions of the father's visitation with child one where the order provided that the department of social services was to offer supervised visitation
for the father every-other week and that visitation would be reduced to once a month if the father acted inappropriately during a visitation or did not attend a visit without prior notice. In re J.P.,
227 N.C. App. 537, 742 S.E.2d 853 (2013), sub. op. 2013 N.C. App. LEXIS 905 (N.C. Ct. App. 2013).
Visitation Plan Insufficient. - It was error for a trial court's dispositional order concerning a mother's children to fail to provide for visitation with the mother because (1) such a provision was statutorily required, absent findings that visitation had been forfeited or was not in the children's best interests, and (2) such findings were not made. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).
Trial court's order providing for a father's supervised visitation with his child every other week, to be reduced to once a month if he acted inappropriately, required additional findings and conclusions as to the time, place, and conditions of an appropriate
visitation plan. In re J.P., 230 N.C. App. 523, 750 S.E.2d 543 (2013).
Judge May Make Oral Entry of Order. - Under G.S. 1A-1, Rule 58, a judge may make an oral entry of a juvenile order, provided the order
is subsequently reduced to written form as required by this section. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Mandamus Proper Remedy for Violation of Time Limit. - Trial court committed no prejudicial error where the court's failure to comply with G.S. 7B-807(b) and 7B-905(a) occurred after a dispositional and adjudicative hearing, and the three-month delay in entry of the order of adjudication and disposition could not have been remedied by a new hearing. The proper remedy would have
been to seek a writ of mandamus pursuant to N.C. R. App. P. 22(a) to compel the trial court to enter the order. In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008).
Written dispositional order entered by juvenile court, which conformed generally with oral announcement of the order in open court, was valid. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).
Implication of Separation as Pre-Condition to Reunification Deemed Error. - Although the court was authorized under former G.S. 7A-651(c)(2) to find that efforts to reunite a family would be futile or inconsistent with the juvenile's safety, the court's
statements implying that separation of the parents was a pre-condition to the mother having a realistic chance to regain custody were prejudicial error, and the part of the court's order retaining jurisdiction was, therefore, vacated.
In re McLean, 135 N.C. App. 387, 521 S.E.2d 121 (1999).
Restitution Order Vacated. - Where although the record contained substantial evidence that victim suffered great damage to his mobile home, juveniles were charged only with breaking windows and damaging the doors of his property, and admitted only to
throwing rocks through some of the windows in the mobile home and nothing further, and there was no evidence in the record as to the amount of damage caused by the rocks thrown by the juveniles, dispositional order ordering restitution
in the amount of $3,000.00 would be vacated and the matter remanded for a new dispositional hearing, at which the court would determine the amount of damages caused to the mobile home by the rocks thrown through the windows by
the juveniles. In re Hull, 89 N.C. App. 171, 365 S.E.2d 221 (1988).
Where custody changes from one parent to another, in the children's best interests, the trial was relieved of the duty to conduct periodic judicial reviews of the placement pursuant to G.S. 7B-905 and G.S. 7B-906(d) (repealed, see now G.S. 7B-906.1). Rholetter v. Rholetter,
162 N.C. App. 653, 592 S.E.2d 237 (2004).
Denial of Visitation to Father. - Trial court did not err in ordering that there be no contact between a minor child and her father because the testimony presented at a hearing along with county department of social services reports offered as evidence
before the trial court tended to show that the father beat the child two to three times a day with a belt, used his fist to hit the child in the mouth, stomped on the child's stomach and caused the child to sustain the injuries
of a fractured finger and ruptured spleen; accordingly, no amount of contact between the father and the child could have been said to be in the best interest of the child or be in anyway consistent with the health and safety of
the child. In re J.S., 182 N.C. App. 79, 641 S.E.2d 395 (2007).
Child Properly Removed. - Because the trial court found that the Department of Social Services (DSS) made reasonable efforts to prevent or eliminate the need for placement with DSS, to reunify the family, and to implement a permanent plan for the minor
child, and the conditions that led to the kinship placement of both minor children still existed, the child was properly removed. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817
(2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).
Improper Discretion As to Visitation At Discretion of Guardian Held Error - Trial court erred in ordering visitation between mother and her child at the discretion of the guardian with whom the court vested the physical custody of the child because the court, at a review hearing, was to consider and make relevant findings of fact regarding an appropriate visitation plan under G.S. 7B-906(c)(6) (repealed, see now G.S. 7B-906.1). In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).
In a proceeding where children had been adjudicated neglected and dependent, permitting the children's guardian to determine visitation with their mother under G.S. 7B-905 was an improper delegation of judicial function. In re T.T., 182 N.C. App. 145, 641 S.E.2d 344 (2007).
Restriction on Visitation. - Trial court did not err in ordering that visitation between the minor child, who had been the subject of neglect proceedings in the trial court, and the parents be at the discretion of the county social services department, as the trial court had the authority to do so; however, a remand of the minor child's case to the trial court was necessary because the county social services department was required to submit a visitation plan for the trial court's approval. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).
Findings that a father did not understand that his violent behaviors were unacceptable and had negatively impacted his children, had not been consistent with his contact with the child, and had refused to enroll in parenting classes, and the father's emotional instability supported supervised weekly visitation, but clarification was needed under G.S. 7B-905 as to the father's visitation rights, including the establishment of a minimum outline of visitation. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).
In proceedings wherein a five-year-old child was adjudicated neglected, the trial court erred in denying the mother in-person visitation and permitting only electronic video communication, G.S. 50-13.2(e),
because the court failed to find the mother forfeited her right to visitation or that visitation was not in the child's best interest, G.S. 7B-905(c). In
re T.R.T., 225 N.C. App. 567, 737 S.E.2d 823 (2013).
Termination of Visitation. - Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901,
G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful
parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).
Order Allowing Parent and Child to Set Visitation Criteria Was Improper Delegation Of Trial Court's Authority. - Because the trial court's order for visitation allowed a mother and a juvenile the authority to create the criteria upon which the visitations
would occur, the order constituted an impermissible delegation of the trial court's authority under G.S. 7B-905; the trial court failed
to include a minimum outline of the conditions under which visitation could be exercised, and the order allowed for one visit per month but provided no other details such as the time, place, or conditions under which the visitation
was to take place. In re H.K.L., - N.C. App. - , - S.E.2d - (May 3, 2011).
Impermissible Delegation of Authority. - Trial court's visitation order constituted an impermissible delegation of the court's statutory authority because it did not contain the required minimum outline. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).
Visitation Plan Held Insufficient. - Trial court failed to adopt a proper visitation plan because the plan provided in its disposition order did not sufficiently set forth the time, place, or conditions of a father's visitation with his child. In re J.P., - N.C. App. - , 745 S.E.2d 917 (Aug. 6, 2013).
Applied in In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008); State v. Rivens, 198 N.C. App. 130, 679 S.E.2d 145 (2009).
Cited in In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424 (2005); In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005); In re A.K., 360 N.C. 449,
628 S.E.2d 753 (2006); In re A.R.G., 178 N.C. App. 205, 631 S.E.2d 146 (2006); Owen v. Keeter (In re C.L.K.), 182 N.C. App. 600, 643 S.E.2d 458 (2007); In re A.R.H.B.,
186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d
514 (2007), review denied,
362 N.C. 235, 659 S.E.2d 738 (2008); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re P.S., 242 N.C. App. 430, 775 S.E.2d 370 (2015);
In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).
§ 7B-905.1. Visitation.
- An order that removes custody of a juvenile from a parent, guardian, or custodian or that continues the juvenile's placement outside the home shall provide for visitation that is in the best interests of the juvenile consistent with the juvenile's health and safety, including no visitation. The court may specify in the order conditions under which visitation may be suspended.
- If the juvenile is placed or continued in the custody or placement responsibility of a county department of social services, the court may order the director to arrange, facilitate, and supervise a visitation plan expressly approved or ordered by the court. The plan shall indicate the minimum frequency and length of visits and whether the visits shall be supervised. Unless the court orders otherwise, the director shall have discretion to determine who will supervise visits when supervision is required, to determine the location of visits, and to change the day and time of visits in response to scheduling conflicts, illness of the child or party, or extraordinary circumstances. The director shall promptly communicate a limited and temporary change in the visitation schedule to the affected party. Any ongoing change in the visitation schedule shall be communicated to the party in writing and state the reason for the change.
- If the juvenile is placed or continued in the custody or guardianship of a relative or other suitable person, any order providing for visitation shall specify the minimum frequency and length of the visits and whether the visits shall be supervised. The court may authorize additional visitation as agreed upon by the respondent and custodian or guardian.
- If the court retains jurisdiction, all parties shall be informed of the right to file a motion for review of any visitation plan entered pursuant to this section. Upon motion of any party and after proper notice and a hearing, the court may establish, modify, or enforce a visitation plan that is in the juvenile's best interest. Prior to or at the hearing, the court may order the department and guardian ad litem to investigate and make written recommendations as to appropriate visitation and give testimony concerning its recommendations. For resolution of issues related to visitation, the court may order the parents, guardian, or custodian to participate in custody mediation where there is a program established pursuant to G.S. 7A-494. In referring a case to custody mediation, the court shall specify the issue or issues for mediation, including, but not limited to, whether or not visitation shall be supervised and whether overnight visitation may occur. Custody mediation shall not permit the participants to consent to a change in custody. A copy of any agreement reached in custody mediation shall be provided to all parties and counsel and shall be approved by the court. The provisions of G.S. 50-13.1(d) through (f) apply to this section.
If the director makes a good faith determination that the visitation plan is not consistent with the juvenile's health and safety, the director may temporarily suspend all or part of the visitation plan. The director shall not be subject to any motion to show cause for this suspension but shall expeditiously file a motion for review and request that a hearing be scheduled within 30 days. However, no motion or notice of hearing is required if a review or permanency planning hearing is already scheduled to be heard within 30 days of the suspension.
History
(2013-129, s. 24; 2019-33, s. 9.)
Editor's Note. - Session Laws 2013-129, s. 41, makes this section effective October 1, 2013, and applicable to actions filed or pending on or after that date.
Effect of Amendments. - Session Laws 2019-33, s. 9, effective October 1, 2019, in subsection (a), substituted "visitation that is" for "appropriate visitation as may be" and inserted "including no visitation"; and in subsection (b), inserted "and request that a hearing be scheduled within 30 days. However, no motion or notice of hearing is required if a review or permanency planning, hearing is already scheduled to be heard within 30 days of the suspension."
CASE NOTES
Applicability. - Application of G.S. 7B-905.1(d) is limited to instances where the trial court is not otherwise mandated to review the visitation plan;
the court has not held, and declines to hold, that the trial court is obligated to advise parents of their right to file a motion to review the visitation plan where the trial court is statutorily mandated to hold permanency planning
hearings at least every six months. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Applicability. - Application of G.S. 7B-905.1(d) is limited to instances where the trial court is not otherwise mandated to review the visitation plan;
the court has not held, and declines to hold, that the trial court is obligated to advise parents of their right to file a motion to review the visitation plan where the trial court is statutorily mandated to hold permanency planning
hearings at least every six months. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).
Visitation Plan Review. - Court did not fail to find if the court should retain jurisdiction because (1) the court did not terminate jurisdiction and said the parties could ask the court to review visitation, (2) a mother did not claim the court wrongly
kept jurisdiction or did not follow statutory procedures, and (3) the mother did not support a claim that transfer to an N.C. Gen. Stat. ch. 50 proceeding was not analyzed. In re Y.I., 262 N.C. App. 575, 822 S.E.2d 501 (2018).
Visitation Plan Sufficient. - Visitation order, giving the mother two hour long visits, complied with the statutory mandate in this section. In re J.W., 241 N.C. App. 44, 772 S.E.2d 249 (2015).
Trial court's order for supervised visitation as to the mother was not manifestly unsupported by reason, and the trial court did not abuse its discretion by limiting her to a minimum of one hour per week of supervised visitation with the child, because the trial court had heard testimony that the parent's unsupervised visitation had previously been rescinded due to separate instances of visitation where they appeared to be under the influence, the child's guardian ad litem recommended supervised visitation, and the child's therapist's letter also described concerns with changing the juvenile's routine. In re I.K., - N.C. App. - , - S.E.2d - (Aug. 18, 2020).
Father's argument that the trial court failed to provide him with notice of his right to file a motion with the trial court to review the visitation plan was rejected because in open court the trial court made the parties aware in a general sense that it would retain continuing jurisdiction and could review any aspect of its permanency planning order upon its own motion or that of a party. In re I.K., - N.C. App. - , - S.E.2d - (Aug. 18, 2020).
Visitation Plan Insufficient. - Trial court's order providing for a father's supervised visitation with his child every other week, to be reduced to once a month if he acted inappropriately, required additional findings and conclusions as to the time, place, and conditions of an appropriate visitation plan. In re J.P., 230 N.C. App. 523, 750 S.E.2d 543 (2013).
Trial court's visitation plan was insufficient because the court did not establish the duration of a mother's monthly visitation. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).
Trial court did not fully comply with the applicable statutory requirements because its order failed to provide any direction as to the frequency or length of a mother's visits in the event that she did not return to live in Arizona, and it failed to
specify whether the visits with the mother would be supervised or unsupervised. In re J.D.M.-J., 260 N.C. App. 56, 817 S.E.2d 755 (2018).
Visitation Order Sufficient. - Trial court properly accounted for the minimum frequency and length of visitation and provided for the visitations to be supervised by the family therapist; nothing required the court to designate a time and place for the visitations. In re N.B., 240 N.C. App. 353, 771 S.E.2d 562 (2015).
Trial court's visitation provisions were not inconsistent because the trial court's conclusion that the mother was a parent whose status conveyed a right to visitation was subject to the determination of the scope and duration of visitation as would be in the best interest of the child consistent with his health and safety; the trial court's determination that the foster parents be appointed the child's guardians conveyed the parental status the mother retained following that determination. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).
Trial court did not abuse its discretion in denying visitation because visitation with the mother was not in the child's best interest consistent with his health and safety; the trial court's ultimate finding that visitation would be inappropriate and not in the child's best interest was supported by the trial court's evidentiary findings. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).
Visitation Order Insufficient. - Court's supervised visitation order erred because the court did not find related costs or whether a mother could pay such costs. In re Y.I., 262 N.C. App. 575, 822 S.E.2d 501 (2018).
Trial court's visitation order was vacated because the trial court did not notify the mother of her right to file a motion for review of the visitation plan; in addition, the trial court did not inform the mother of that right in open court on the record. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).
Trial court's visitation order erred because: (1) the court ordered supervised visitation without addressing the costs of such visitation, the party liable for such costs, or a mother's ability to bear the costs; and (2) the order contained contradictory provisions regarding the amount of visitation the mother was awarded. In re J.T.S., - N.C. App. - , 834 S.E.2d 637 (2019).
Portion of the dispositional order setting out the Mother's visitation was set aside and remanded for additional findings where the trial court had not determined whether any inability to pay for visitation on the mother's part would have prevented the best interests of the child from being met. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).
Impermissible Delegation of Judicial Function. - Trial court impermissibly delegated its judicial function to a father because the disposition order delegated to the father substantial discretion over kinds of visitation, such as the mother having lunch with the child at school; the order also provided future, conditional expansions of the mother's visitation rights that effectively were contingent on the father deciding that the mother complied with the trial court's directives. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).
When a trial court concluded it was not in children's best interests to return the children to the children's grandparents, the court's findings regarding the grandparents' visitation and the children's best interest were deficient because (1) the court made no reference to visitation and made no findings supporting the conclusion, and (2) a finding adopting reports of the Department of Social Services and the guardian ad litem as findings of fact was insufficient. In re J.R.S., 258 N.C. App. 612, 813 S.E.2d 283 (2018).
Allowing a social services agency to expand visitation contingent upon the mother's progress with her case plan was not an impermissible delegation of judicial authority. The disposition order only gave the agency discretion to expand visitation, not reduce it below the minimum set by the trial court. In re K.W., - N.C. App. - , 846 S.E.2d 584 (2020).
Although the grandmother, who was granted guardianship of the mother's children, was not explicitly authorized to terminate or suspend the mother's visitation, the trial court improperly delegated a judicial function to the grandmother by giving her the power to unilaterally modify the mother's visitation. In re J.M., - N.C. App. - , - S.E.2d - (Sept. 1, 2020).
Visitation Plan Review Preserved. - Mother's appellate claim that a trial court erred in ordering supervised visitation without addressing cost, who would bear the expense, or the mother's ability to pay that expense was considered on appeal despite her failure to object because no objection was required to preserve this type of question for review. In re J.T.S., - N.C. App. - , 834 S.E.2d 637 (2019).
Trial court did not abuse its discretion in denying visitation to a biological father because he had not contacted the children for two years, and the children did not know the biological father and had no bond with him; given the issues with the biological father's transience and criminal history, and his lack of involvement throughout the children's life, it was not manifestly unreasonable to deduce that being introduced to him could be emotionally difficult. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).
Cited in In re E.M., 249 N.C. App. 44, 790 S.E.2d 863 (2016); In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).
§ 7B-906: Repealed by Session Laws 2013-129, s. 25, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
History
(1979, c. 815, s. 1; 1987, c. 810; 1987 (Reg. Sess., 1988), c. 1090, s. 11; 1989, c. 152, s. 1; 1997-390, s. 9; 1998-202, s. 6; 1998-229, ss. 8, 25; 1999-456, s. 60; 2000-124, s. 2; 2001-208, s. 19; 2001-487, s. 101; 2003-62, s. 2; 2003-140, s. 9(c); 2005-398, s. 6; 2007-276, s. 3; 2009-311, s. 6; repealed by 2013-129, s. 25, effective October 1, 2013.)
Editor's Note. - Former G.S. 7B-906 pertained to review of custody order. For present similar provisions pertaining to review and permanency planning hearings, see
G.S. 7B-906.1.
§ 7B-906.1. Review and permanency planning hearings.
- The court shall conduct a review hearing within 90 days from the date of the initial dispositional hearing held pursuant to G.S. 7B-901. Review hearings shall be held at least every six months thereafter. Within 12 months of the date of the initial order removing custody, there shall be a review hearing designated as a permanency planning hearing. Review hearings after the initial permanency planning hearing shall be designated as permanency planning hearings. Permanency planning hearings shall be held at least every six months thereafter or earlier as set by the court to review the progress made in finalizing the permanent plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile.
- The director of social services shall make a timely request to the clerk to calendar each hearing at a session of court scheduled for the hearing of juvenile matters. The clerk shall give 15 days' notice of the hearing and its purpose to (i) the parents, (ii) the juvenile if 12 years of age or more, (iii) the guardian, (iv) the person providing care for the juvenile, (v) the custodian or agency with custody, (vi) the guardian ad litem, and (vii) any other person or agency the court may specify. The department of social services shall either provide to the clerk the name and address of the person providing care for the juvenile for notice under this subsection or file written documentation with the clerk that the juvenile's current care provider was sent notice of hearing. Nothing in this subsection shall be construed to make the person providing care for the juvenile a party to the proceeding solely based on receiving notice and the right to be heard.
- At each hearing, the court shall consider information from the parents, the juvenile, the guardian, any person providing care for the juvenile, the custodian or agency with custody, the guardian ad litem, and any other person or agency that will aid in the court's review. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, or testimony or evidence from any person that is not a party, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.
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At each hearing, the court shall consider the following criteria and make written findings regarding those that are relevant:
- Services which have been offered to reunite the juvenile with either parent whether or not the juvenile resided with the parent at the time of removal or the guardian or custodian from whom the child was removed.
- Reports on visitation that has occurred and whether there is a need to create, modify, or enforce an appropriate visitation plan in accordance with G.S. 7B-905.1.
- Whether efforts to reunite the juvenile with either parent clearly would be unsuccessful or inconsistent with the juvenile's health or safety and need fo