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:

  1. To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents;
  2. 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.
  3. 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
  4. 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.
  5. 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).

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:

  1. 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:
    1. Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means;
    2. Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means;
    3. Uses or allows to be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;
    4. 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;
    5. 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;
    6. Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the juvenile; or
    7. 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.
  2. Repealed by Session Laws 2015-136, s. 1, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
  3. 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.
  4. Clerk. - Any clerk of superior court, acting clerk, or assistant or deputy clerk.
  5. Repealed by Session Laws 2013-129, s. 1, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
  6. Court. - The district court division of the General Court of Justice.
  7. 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.
  8. 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.
  9. Custodian. - The person or agency that has been awarded legal custody of a juvenile by a court.
  10. 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.
  11. 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.
  12. 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.
  13. District. - Any district court district as established by G.S. 7A-133.
  14. 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.
  15. 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.
  16. Judge. - Any district court judge.
  17. Judicial district. - Any district court district as established by G.S. 7A-133.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. Prosecutor. - The district attorney or assistant district attorney assigned by the district attorney to juvenile proceedings.
  23. 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.
  24. Relative. - An individual directly related to the juvenile by blood, marriage, or adoption, including a grandparent, sibling, aunt, or uncle.
  25. 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.
  26. 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.
  27. Safe home. - A home in which the juvenile is not at substantial risk of physical or emotional abuse or neglect.
  28. 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.
  29. Repealed by Session Laws 2013-129, s. 1, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
  30. Substantial evidence. - Relevant evidence a reasonable mind would accept as adequate to support a conclusion.
  31. 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); 2021-100, s. 1(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.

Session Laws 2021-100, s. 1(a), effective October 1, 2021, redesignated former subdivisions (18a), and (18b) as present subdivisions (18b), and (18c); and added present subdivision (18a).

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).

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).

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 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.

  1. 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.
    1. Proceedings under the Interstate Compact on the Placement of Children set forth in Article 38 of this Chapter.
    2. 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.
    3. Proceedings to determine whether a juvenile should be emancipated.
    4. Proceedings to terminate parental rights.
    5. Proceedings for reinstatement of parental rights.
    6. 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.
    7. Proceedings to review the placement of a young adult in foster care pursuant to G.S. 108A-48 and G.S. 7B-910.1.
    8. Proceedings in which a person is alleged to have obstructed or interfered with an investigation required by G.S. 7B-302.
    9. Proceedings involving consent for an abortion on an unemancipated minor under Article 1A, Part 2 of Chapter 90 of the General Statutes.
    10. Proceedings by an underage party seeking judicial authorization to marry under Article 1 of Chapter 51 of the General Statutes.
    11. Petitions for judicial review of a director's determination under Article 3A of this Chapter.
  2. 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).
  3. When the court obtains jurisdiction over a juvenile as the result of a petition alleging that the juvenile is abused, neglected, or dependent:
    1. 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.
    2. 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.
  4. 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.

  1. 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.
  2. 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:
    1. A civil custody order entered pursuant to G.S. 7B-911.
    2. An order terminating parental rights.
    3. A pending action to terminate parental rights, unless the court orders otherwise.
    4. Any proceeding in which the juvenile is alleged to be or has been adjudicated undisciplined or delinquent.
    5. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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).

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.

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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:
    1. 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.
    2. 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.
    3. The juvenile's guardian ad litem or the juvenile, including a juvenile who has reached age 18 or been emancipated is authorized to review the record and request all or part of the record unless prohibited by federal law. The department shall provide electronic or written copies of the requested information within a reasonable period of time.
    4. 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.
    5. 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.
    6. The department may disclose confidential information to a parent, guardian, custodian, or caretaker in accordance with G.S. 7B-700 of this Subchapter.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. The director or the director's representative may not enter a private residence for assessment purposes without at least one of the following:
    1. The reasonable belief that a juvenile is in imminent danger of death or serious physical injury.
    2. The permission of the parent or person responsible for the juvenile's care.
    3. The accompaniment of a law enforcement officer who has legal authority to enter the residence.
    4. 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); 2021-100, s. 2.)

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).

Session Laws 2021-100, s. 2, effective October 1, 2021, rewrote subdivision (a1)(2).

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

  1. 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.
  2. ,   (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.

  1. 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.
  2. 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.
    1. 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.
    2. 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.
  3. 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.
  4. 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.
  5. Except as otherwise provided, a petition begun under this section shall proceed in like manner with petitions begun under G.S. 7B-302.
  6. 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.

  1. 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.
  2. 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:
    1. The individual is properly notified pursuant to G.S. 7B-320 and fails to file a petition for judicial review in a timely manner.
    2. The court determines that the individual is a responsible individual as a result of a hearing on the individual's petition for judicial review.
    3. The individual is criminally convicted as a result of the same incident involved in an investigative assessment response.
  3. 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.
  4. 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:
    1. Filing data.
    2. Notifying an individual that the individual has been determined by the director to be a responsible individual.
    3. Correcting and expunging information.
    4. Determining persons who are authorized to receive information from the responsible individuals list.
    5. Releasing information from the responsible individuals list to authorized requestors.
    6. Gathering statistical information.
    7. Keeping and maintaining information placed in the registry and on the responsible individuals list.
    8. 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.

  1. 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.
  2. 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.
  3. The notice shall include all of the following:
    1. A statement informing the individual of the nature of the investigative assessment response and whether the director determined abuse or serious neglect or both.
    2. A statement that the individual has been identified as a responsible individual.
    3. A statement summarizing the substantial evidence supporting the director's determination without identifying the reporter or collateral contacts.
    4. 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.
    5. A clear description of the actions the individual must take to seek judicial review of the director's determination.
  4. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. At the hearing, the following rights of the parties shall be preserved:
    1. The right to present sworn evidence, law, or rules that bear upon the case.
    2. The right to represent themselves or obtain the services of an attorney at their own expense.
    3. 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.
  6. 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.
  7. 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.
  8. 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.

  1. 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:
    1. 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.
    2. Repealed by Session Laws 2013-129, s. 6, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
    3. Repealed by Session Laws 2010-90, s. 8, effective July 11, 2010.
    4. After proper notice, the individual fails to file a petition for judicial review with the district court in a timely manner.
    5. Repealed by Session Laws 2010-90, s. 8, effective July 11, 2010.
  2. 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.
  3. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

  1. The pleading in an abuse, neglect, or dependency action is the petition. The process in an abuse, neglect, or dependency action is the summons.
  2. 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.

  1. 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.
  2. Parents. - The juvenile's parent shall be a party unless one of the following applies:
    1. The parent's rights have been terminated.
    2. The parent has relinquished the juvenile for adoption, unless the court orders that the parent be made a party.
    3. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The Juvenile. - The juvenile shall be a party.
  8. 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.
  9. 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.
  10. 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.

  1. 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.
  2. The petition, or an affidavit attached to the petition, shall contain the information required by G.S. 50A-209.
  3. 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.
  4. 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.

  1. 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.
  2. 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.

  1. When the office of the clerk is closed, a magistrate shall accept for filing the following:
    1. A petition alleging a juvenile to be abused, neglected, or dependent.
    2. A petition alleging the obstruction of or interference with an assessment required by G.S. 7B-302.
  2. 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.

  1. 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.
  2. A summons shall be on a printed form supplied by the Administrative Office of the Courts and shall include each of the following:
    1. Notice of the nature of the proceeding.
    2. 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.
    3. Repealed by Session Laws 2013-129, s. 11, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
    4. 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.
    5. Notice that the dispositional order or a subsequent order:
      1. May remove the juvenile from the custody of the parent, guardian, or custodian.
      2. May require that the juvenile receive medical, psychiatric, psychological, or other treatment and that the parent participate in the treatment.
      3. 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.
      4. May order the parent to pay for treatment that is ordered for the juvenile or the parent.
      5. 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.
  3. 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.
  4. 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.

  1. 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.
  2. 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:
    1. 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.
    2. A law enforcement officer who is on duty or at a police station or sheriff's department.
    3. A social services worker who is on duty or at a local department of social services.
    4. A certified emergency medical service worker who is on duty or at a fire or emergency medical services station.
  3. 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.
  4. 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.
  5. 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.

  1. A person who takes a juvenile into custody without a court order under G.S. 7B-500 shall proceed as follows:
    1. 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.
    2. 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.
    3. 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.
  2. 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:
    1. A petition or motion for review has been filed by the director of the department of social services, and
    2. 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.

  1. 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:
    1. The department has received written notification that a respondent has counsel for the juvenile matter.
    2. The respondent is represented by counsel in a juvenile proceeding within the same county involving another juvenile of the respondent.
  2. 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.

  1. 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:
    1. The juvenile has been abandoned.
    2. The juvenile has suffered physical injury, sexual abuse, or serious emotional damage as defined by G.S. 7B-101(1)e.
    3. 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.
    4. 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.
    5. The parent, guardian, custodian, or caretaker consents to the nonsecure custody order.
    6. The juvenile is a runaway and consents to nonsecure custody.
  2. 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.

  1. 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:
    1. A licensed foster home or a home otherwise authorized by law to provide such care.
    2. A facility operated by the department of social services.
    3. 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.
  2. If juvenile siblings are removed from the home and placed in the nonsecure custody of a county department of social services, the director shall make reasonable efforts to place the juvenile siblings in the same home. The director is not required to make reasonable efforts under this subsection if the director documents that placing the juvenile siblings would be contrary to the safety or well-being of any of the juvenile siblings. If, after making reasonable efforts, the director is unable to place the juvenile siblings in the same home, the director shall make reasonable efforts to provide frequent sibling visitation and ongoing interaction between the juvenile siblings, unless the director documents that frequent visitation or other ongoing interaction between the juvenile siblings would be contrary to the safety or well-being of any of the juvenile siblings.
  3. 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.
  4. 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.
  5. 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; 2021-100, s. 3.)

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.

Session Laws 2021-100, s. 3, effective October 1, 2021, added subsection (a1).

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.

  1. 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:
    1. Routine medical and dental care or treatment, including, but not limited to, treatment for common pediatric illnesses and injuries that require prompt intervention.
    2. Emergency medical, surgical, psychiatric, psychological, or mental health care or treatment.
    3. Testing and evaluation in exigent circumstances.
  2. 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.
  3. 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:
    1. Prescriptions for psychotropic medications.
    2. Participation in clinical trials.
    3. Immunizations when it is known that the parent has a bona fide religious objection to the standard schedule of immunizations.
    4. Child Medical Evaluations not governed by subsection (b) of this section, comprehensive clinical assessments, or other mental health evaluations.
    5. Surgical, medical, or dental procedures or tests that require informed consent.
    6. Psychiatric, psychological, or mental health care or treatment that requires informed consent.
  4. 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.
  5. 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.
  6. 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.

  1. 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.
  2. 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.
  3. The court shall be bound by criteria set forth in G.S. 7B-503 in determining whether continued custody is warranted.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. In addition to the hearings required under this section, any party may schedule a hearing on the issue of placement.
  9. The provisions of G.S. 7B-905.1 shall apply to determine visitation.
  10. At each hearing to determine the need for continued custody, the court shall determine the following:
    1. 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.
    2. 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.
    3. 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.
    4. 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.

  1. An order placing or continuing the placement of a juvenile in the nonsecure custody of a county department of social services:
    1. 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.
    2. 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.
    3. Repealed by Session Laws 2015-136, s. 7, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
    4. 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.
    5. May order services or other efforts aimed at returning the juvenile to a safe home.
  2. 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.

  1. 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.
  2. 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.
  3. 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:
    1. 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.
    2. Utilize the community resources in behavioral sciences and other professions in the investigation and study of the guardian.
    3. 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.
    4. Take any other action necessary in order to make a determination in a particular case.
  4. 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).

Trial court properly performed its statutory duty to verify that a child's relative and the relative's long-term partner understood the legal significance of their appointment as guardians because the testimony of the relative, the testimony from a social worker, and the home study report each provided competent evidence that both of the guardians understood the legal significance of the guardianship appointment. In re B.H., - N.C. App. - , - S.E.2d - (July 6, 2021).

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.

  1. 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.
  2. 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.
  3. 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.

  1. 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, shall indicate the appointment on the juvenile summons or attached notice, and shall provide a copy of the petition and summons or notice to the attorney. At the first hearing, the court shall dismiss the provisional counsel if the respondent parent:
    1. Does not appear at the hearing;
    2. Does not qualify for court-appointed counsel;
    3. Has retained counsel; or
    4. Waives the right to counsel.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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; 2021-100, s. 4.)

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.

Session Laws 2021-100, s. 4, effective October 1, 2021, in subsection (a), inserted "and shall provide a copy of the petition and summons or notice to the attorney” and made stylistic changes.

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

  1. Prior to the adjudicatory hearing, the court shall consider the following:
    1. Retention or release of provisional counsel.
    2. Identification of the parties to the proceeding.
    3. Whether paternity has been established or efforts made to establish paternity, including the identity and location of any missing parent.
    4. 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.
    5. Whether all summons, service of process, and notice requirements have been met.
    6. Whether the petition has been properly verified and invokes jurisdiction.
    7. 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.
    8. Any other issue that can be properly addressed as a preliminary matter.
  2. 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.
  3. 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.

  1. 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:
    1. The nature of the allegations against the juvenile's parent, guardian, custodian or caretaker;
    2. The age and maturity of the juvenile;
    3. The benefit to the juvenile of confidentiality;
    4. The benefit to the juvenile of an open hearing; and
    5. 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.
  2. No hearing or part of a hearing shall be closed by the court if the juvenile requests that it remain open.
  3. 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:
    1. All parties are present or represented by counsel, who is present and authorized to consent.
    2. The juvenile is represented by counsel.
    3. The court makes sufficient findings of fact.
  4. 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).

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.

  1. 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.
  2. Repealed by Session Laws 2013-129, s. 21, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
  3. 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).

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.

  1. 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.
  2. 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.
  3. 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:
    1. Prohibit a party entitled by law to receive confidential information from receiving that information.
    2. 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.

  1. 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.
  2. 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:
    1. 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
    2. The Director of the Division of Social Services or the Director's designee has made that determination pursuant to G.S. 153A-257(d).
  3. 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.
  4. 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.
  5. Before ordering that a case be transferred to another county, the court shall consider relevant factors, which may include:
    1. 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.
    2. 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.
    3. The nature and location of services and service providers necessary to achieve the reunification plan or other permanent plan for the juvenile.
    4. The impact upon the juvenile of the potential disruption of an existing therapeutic relationship.
    5. The nature and location of witnesses and evidence likely to be required in future hearings.
    6. The degree to which the transfer would cause inconvenience to one or more parties.
    7. Any agreement of the parties as to which forum is most convenient.
    8. 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.
    9. Any other factor the court considers relevant.
  6. 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.
  7. 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.
    1. Assign an appropriate file number to the case.
    2. Ensure that any necessary appointments of new attorneys or guardians ad litem are made.
    3. 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.

  1. 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.
  2. 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.
  3. 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:
    1. 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:
      1. Sexual abuse.
      2. Chronic physical or emotional abuse.
      3. Torture.
      4. Abandonment.
      5. Chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction in the juvenile.
      6. Any other act, practice, or conduct that increased the enormity or added to the injurious consequences of the abuse or neglect.
    2. A court of competent jurisdiction has terminated involuntarily the parental rights of the parent to another child of the parent.
    3. 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.
  4. When the court determines that reunification efforts are not required, the court shall order concurrent permanent plans 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; 2021-100, s. 5.)

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).

Session Laws 2021-100, s. 5, effective October 1, 2021, substituted "concurrent permanent plans” for "a permanent plan” in 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).

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).

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).

Mother cited no authority regarding the timing of a change in the plan to achieve permanence, and as long as the trial court considered the factors as required by statute and made appropriate findings, as here, no abuse of discretion was found in the trial court's decision to change to guardianship. In re B.R.W., - N.C. App. - , - S.E.2d - (July 20, 2021).

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.

  1. 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:
    1. Dismiss the case or continue the case in order to allow the parent, guardian, custodian, caretaker or others to take appropriate action.
    2. 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.
    3. Repealed by Session Laws 2015-136, s. 10, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
    4. 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.
    5. Appoint a guardian of the person for the juvenile as provided in G.S. 7B-600.
    6. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Repealed by Session Laws 2015-136, s. 10, effective October 1, 2015, and applicable to actions filed or pending on or after that date.
  7. 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.
  8. 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.

  1. 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.
  2. 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.
  3. 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.
  4. If juvenile siblings are removed from the home and placed in the nonsecure custody of a county department of social services, the director shall make reasonable efforts to place the juvenile siblings in the same home. The director is not required to make reasonable efforts under this subsection if the director documents that placing the juvenile siblings would be contrary to the safety or well-being of any of the juvenile siblings. If, after making reasonable efforts, the director is unable to place the juvenile siblings in the same home, the director shall make reasonable efforts to provide frequent sibling visitation and ongoing interaction between the juvenile siblings, unless the director documents that frequent visitation or other ongoing interaction between the juvenile siblings would be contrary to the safety or well-being of any of the juvenile siblings.
  5. 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.
  6. 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; 2021-100, s. 6.)

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).

Session Laws 2021-100, s. 6, effective October 1, 2021, added subsection (c1).

§ 7B-904. Authority over parents of juvenile adjudicated as abused, neglected, or dependent.

  1. 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.
  2. 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 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 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.
  3. 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 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 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 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 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 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 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 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 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.
  4. If the court has ordered an individual to comply with a plan of treatment for substance use disorder, including opioid dependency, that individual shall not be in violation of the terms or conditions of that part of the court's order if he or she is compliant with medication-assisted treatment. For the purposes of this subsection, "medication-assisted treatment" means the use of pharmacological medications administered, dispensed, and prescribed in a Substance Abuse and Mental Health Services Administration (SAMHSA) accredited and certified opioid treatment program (OTP) or by a certified practitioner licensed in this State to practice medicine, in combination with counseling and behavioral therapies, to provide a whole patient approach to the treatment of substance use disorders.
  5. 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.
  6. 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:
    1. 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.
    2. 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.
    3. 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.
  7. 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; 2021-100, s. 7.)

Effect of Amendments. - Session Laws 2021-100, s. 7, effective October 1, 2021, in subsections (b), and (c), substituted "adult entrusted” for "adult relative entrusted” throughout; and added subsection (c1).

CASE NOTES

Construction In Relation to Termination. - Many of the following cases were decided prior to the enactment of this Chapter. 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 court in ceasing reunification exercised its discretion in choosing to decline enumerating specific requirements for a parent and did not abuse its discretion in doing so. The parent was aware of and attempting to participate in an Out of Home Family Services Agreement at the time of the hearing, and any injury caused by the trial court's decision to not lay out the specific acts required of the parent was harmless. In re E.A.C., - N.C. App. - , - S.E.2d - (July 6, 2021).

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.

  1. 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.
  2. (Repealed effective October 1, 2021)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.
  3. ,   (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; 2021-100, s. 8.)

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.

Session Laws 2021-100, s. 8, effective October 1, 2021, repealed subsection (b), which read: "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.”

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.

  1. 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.
  2. 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.
  3. 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.
  4. If the court waives permanency planning hearings and 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; 2021-100, 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."

Session Laws 2021-100, s. 9, effective October 1, 2021, inserted "waives permanency planning hearings and” in the first sentence in subsection (d).

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).

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.

  1. 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.
  2. 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.
  3. 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.
  4. At each hearing, the court shall consider the following criteria and make written findings regarding those that are relevant:
    1. 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.
    2. 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.
    3. Whether efforts to reunite the juvenile with either parent clearly would be unsuccessful or inconsistent with the juvenile's health or safety and need for a safe, permanent home within a reasonable period of time. The court shall consider efforts to reunite regardless of whether the juvenile resided with the parent, guardian, or custodian at the time of removal. If the court determines efforts would be unsuccessful or inconsistent, the court shall schedule a permanency planning hearing within 30 days to address the permanent plans in accordance with this section and G.S. 7B-906.2, unless the determination is made at a permanency planning hearing.
    4. Reports on the placements the juvenile has had, the appropriateness of the juvenile's current foster care placement, and the goals of the juvenile's foster care plan, including the role the current foster parent will play in the planning for the juvenile.
    5. If the juvenile is 16 or 17 years of age, a report on an independent living assessment of the juvenile and, if appropriate, an independent living plan developed for the juvenile.
    6. When and if termination of parental rights should be considered.
    7. Any other criteria the court deems necessary.
  5. At any permanency planning hearing where the juvenile is not placed with a parent, the court shall additionally consider the following criteria and make written findings regarding those that are relevant:
    1. Whether it is possible for the juvenile to be placed with a parent within the next six months and, if not, why such placement is not in the juvenile's best interests.
    2. Where the juvenile's placement with a parent is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established and, if so, the rights and responsibilities that should remain with the parents.
    3. Where the juvenile's placement with a parent is unlikely within six months, whether adoption should be pursued and, if so, any barriers to the juvenile's adoption.
    4. Where the juvenile's placement with a parent is unlikely within six months, whether the juvenile should remain in the current placement, or be placed in another permanent living arrangement and why.
    5. Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile.
    6. Any other criteria the court deems necessary.
  6. In the case of a juvenile who is in the custody or placement responsibility of a county department of social services and has been in placement outside the home for 12 of the most recent 22 months, or a court of competent jurisdiction has determined that the parent (i) has abandoned the child, (ii) has committed murder or voluntary manslaughter of another child of the parent, or (iii) has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent, the director of the department of social services shall initiate a proceeding to terminate the parental rights of the parent unless the court finds any of the following:
    1. The primary permanent plan for the juvenile is guardianship or custody with a relative or some other suitable person.
    2. The court makes specific findings as to why the filing of a petition for termination of parental rights is not in the best interests of the child.
    3. The department of social services has not provided the juvenile's family with services the department deems necessary when reasonable efforts are still required to enable the juvenile's return to a safe home.
  7. At the conclusion of each permanency planning hearing, the court shall make specific findings as to the best permanent plans to achieve a safe, permanent home for the juvenile within a reasonable period of time.
  8. 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.
  9. The court may maintain the juvenile's placement under review or order a different placement, appoint a guardian of the person for the juvenile pursuant to G.S. 7B-600, or order any disposition authorized by G.S. 7B-903, including the authority to place the child in the custody of either parent or any relative found by the court to be suitable and found by the court to be in the best interests of the juvenile.
  10. If the court determines that the juvenile shall be placed in the custody of an individual other than a parent or appoints an individual guardian of the person pursuant to G.S. 7B-600, the court shall verify that the person receiving custody or being appointed as guardian of the juvenile understands the legal significance of the placement or appointment and will have adequate resources to care appropriately for the juvenile. The fact that the prospective custodian or guardian has provided a stable placement for the juvenile for at least six consecutive months is evidence that the person has adequate resources.
  11. If at any time custody is placed with a parent or findings are made in accordance with subsection (n) of this section, the court shall be relieved of the duty to conduct periodic judicial reviews of the placement.
  12. If the court continues the juvenile's placement in the custody or placement responsibility of a county department of social services, the provisions of G.S. 7B-903.1 shall apply to any order entered under this section.
  13. If the court finds that a proceeding to terminate the parental rights of the juvenile's parents is necessary in order to perfect the primary permanent plan for the juvenile, the director of the department of social services shall file a petition to terminate parental rights within 60 calendar days from the date of the entry of the order unless the court makes written findings regarding why the petition cannot be filed within 60 days. If the court makes findings to the contrary, the court shall specify the time frame in which any needed petition to terminate parental rights shall be filed.
  14. Notwithstanding other provisions of this Article, the court may waive the holding of hearings required by this section, may require written reports to the court by the agency or person holding custody in lieu of permanency planning hearings, or order that permanency planning hearings be held less often than every six months if the court finds by clear, cogent, and convincing evidence each of the following:
    1. The juvenile has resided in the placement for a period of at least one year or the juvenile has resided in the placement for at least six consecutive months and the court enters a consent order pursuant to G.S. 7B-801(b1).
    2. The placement is stable and continuation of the placement is in the juvenile's best interests.
    3. Neither the juvenile's best interests nor the rights of any party require that permanency planning hearings be held every six months.
    4. All parties are aware that the matter may be brought before the court for review at any time by the filing of a motion for review or on the court's own motion.
    5. The court order has designated the relative or other suitable person as the juvenile's permanent custodian or guardian of the person.
  15. Permanency planning hearings under this section shall be replaced by post termination of parental rights' placement review hearings when required by G.S. 7B-908.

The court may not waive or refuse to conduct a hearing if a party files a motion seeking the hearing. However, if a guardian of the person has been appointed for the juvenile and the court has also made findings in accordance with subsection (n) of this section that guardianship is the permanent plan for the juvenile, the court shall proceed in accordance with G.S. 7B-600(b).

History

(2013-129, s. 26; 2015-136, ss. 13, 17; 2016-94, s. 12C.1(g1); 2017-161, s. 8; 2019-33, s. 10; 2021-100, s. 10.)

Editor's Note. - Session Laws 2013-129, s. 41, made this section effective October 1, 2013, and applicable to actions filed or pending on or after that date.

Session Laws 2015-136, s. 18, made the amendments to this section by Session Laws 2015-136, ss. 13 and 17, applicable to actions filed or pending on or after October 1, 2015.

Effect of Amendments. - Session Laws 2015-136, ss. 13 and 17, effective October 1, 2015, substituted "The primary permanent plan" for "The permanent plan" in subdivision (f)(1); substituted "permanent plans" for "plan of care" in the first sentence and added the second sentence in subsection (g); substituted "G.S. 7B-903.1" for "G.S. 7B-507" in subsection (l); and substituted "the primary permanent plan" for "the permanent plan" in the first sentence of subsection (m). For applicability, see editor's note.

Session Laws 2016-94, s. 12C.1(g1), effective July 1, 2016, in subdivision (d)(3), substituted "unsuccessful" for "futile" wherever it appeared, substituted "juvenile's health or safety" for "juvenile's safety" in the first sentence, and substituted "other permanent plans of care" for "a permanent plan of care" and inserted "pursuant to G.S. 7B-906.2" in the last sentence.

Session Laws 2017-161, s. 8, effective October 1, 2017, in subsection (a), rewrote the first sentence, which read: "In any case where custody is removed from a parent, guardian, or custodian, the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter.", and substituted "Subsequent permanency" for "The subsequent permanency" at the beginning of the fourth sentence; substituted "schedule a permanency planning hearing within 30 days to address the permanent plans in accordance with this section and G.S. 7B-906.2, unless the determination is made at a permanency planning hearing." for "consider other permanent plans of care for the juvenile pursuant to G.S. 7B-906.2." in the third sentence of subdivision (d)(3); and added subsection (o).

Session Laws 2019-33, s. 10, effective October 1, 2019, in subsection (a), deleted "and shall conduct a review hearing within six months thereafter" at the end of the first sentence and added the second sentence, and deleted "subsequent" preceding "permanency planning" in the fourth and fifth sentences; in subsection (g), substituted "court" for "judge" in the first sentence, and deleted the last sentence, which read: "The judge shall inform the parent, guardian, or custodian that failure or refusal to cooperate with the plan may result in an order of the court in a subsequent permanency planning hearing that reunification efforts may cease"; in subsection (j), added the last sentence; and in subdivision (n)(1), inserted substituted "or the juvenile has resided in the placement for at least six consecutive months and the court enters a consent order pursuant to G.S. 7B-801(b1)."

Session Laws 2021-100, s. 10, effective October 1, 2021, substituted "permanency planning hearings” for "review hearings” throughout subsection (n); substituted "review” for "hearing” in the last paragraph in subsection (n); and rewrote subsection (o).

Legal Periodicals. - 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

I. IN GENERAL.

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).

Applicability. - Mother's argument that a permanency plan failed to comply with G.S. 7B-1000(a) was rejected where the permanency planning order stated that it was entered pursuant to G.S. 7B-906.1, and the mother failed to articulate any legal basis for applying G.S. 7B-1000(a) to an order entered pursuant to G.S. 7B-906.1. In re J.S., 250 N.C. App. 370, 792 S.E.2d 861 (2016).

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).

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).

Because a legal father did not qualify as "an individual other than a parent" under the statute, the trial court was under no obligation to verify his understanding of his obligations or his financial resources; even if the legal father was classified as "an individual other than a parent" under the statute, the trial court's order complied with the statute by including findings demonstrating both his understanding of the placement and his financial ability to care for the children. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Failure to Verify Guardian had Ability to Support Child. - Trial court erred in failing to 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-600(c), 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 erred in awarding custody of children to their aunt and uncle because it did not receive evidence that was sufficient to support its findings regarding the adequacy of their financial resources to provide for the needs of the children; in addition to the lack of sufficient evidence regarding the resources of the aunt and uncle, the trial court also heard no evidence from which it could verify that they understood the legal significance of assuming custody of the children. In re J.D.M.-J., 260 N.C. App. 56, 817 S.E.2d 755 (2018).

Child's Desires. - 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).

Standard Applied Was Incorrect. - 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).

In a dependency action, the trial court applied the incorrect standard in assessing whether or not to change legal custody from the children's married adult sibling to the mother, failing to address custody and reunification as permanent plans and to consider the best interest of the children. In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).

Trial court erred because it failed to indicate that it applied the clear and convincing evidence standard of proof in determining that a mother was unfit and had acted inconsistent with her constitutionally protected status as a parent; in addition, the trial court did not state the appropriate standard in open court on the record. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).

Required Findings. - Trial court failed to make findings under G.S. 7B-906.1(n), and thus the trial court committed reversible error in ceasing further review hearings. In re S.D., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Lack of Supported Findings. - That portion of the trial court's order purporting to end judicial review hearings was reversed for lack of supported and written findings of fact on all five criteria in this section. In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).

Trial court erred in appointing relatives as guardians of a father's minor children because the court's conclusions of law were erroneous since no oral testimony was received at the permanency planning hearing; the only evidence before the trial court consisted of the reports offered by the county department of social services and the guardian ad litem, and the trial court heard no testimony at the permanency planning hearing. In re S.P. & J., - N.C. App. - , 833 S.E.2d 638 (2019).

Inability to Return Child to Parent Within Six Months. - Trial court adequately found a child could not be returned to the child's mother within six months because the court found the mother had not fully resolved issues of domestic violence, mental health, and substance abuse and needed to continue to make progress in those areas before reunification could occur. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).

Continuance. - Trial court did not abuse its discretion by denying the mother's motion to continue on the ground that she was not present at the permanency planning and review hearing because she failed to show that she was prejudiced, as counsel advocated for the mother's interests in an effective manner, and counsel's representation that the mother had just entered an inpatient substance abuse treatment facility appeared to foreclose the prospect that the child's reunification with her mother in the near future. In re L.G., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

District court's findings of fact supported the conclusion that continuation of a plan of reunification between a parent and the parent's child would have been futile and was inconsistent with the child's need for a safe, stable home within a reasonable period of time. The parent-educator who worked with the parent expressed concern about the parent's ability to protect the child against abuse by the individual with whom the parent had been living and the parent's conduct with the child. In re E.M., 249 N.C. App. 44, 790 S.E.2d 863 (2016).

Court did not err in not returning a mother's children because (1) the court's adjudicatory order and permanency planning hearing testimony supported finding domestic violence led to the children's removal, (2) the mother waived a contest to other findings, and (3) the court found the children's father cooperated with treatment while the mother did not. In re Y.I., 262 N.C. App. 575, 822 S.E.2d 501 (2018).

Trial court did not abuse its discretion in its permanency planning order granting guardianship of the child to her grandmother because ample evidence supported the trial court's continuing concerns with the parents' domestic violence, substance abuse, and inadequate housing including the parents testing positive for using marijuana and the cluttered, crowded, dilapidated single-wide trailer in which the parents resided with their newborn and the father's mother. In re I.K., - N.C. App. - , - S.E.2d - (Aug. 18, 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).

Advising Parents of Right to Review. - 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).

Termination Order Sufficient. - Father's petition for certiorari was denied because a termination order did include findings, unchallenged by the father, that supported cessation of reunification efforts, and the contents of termination orders cured defects in a prior permanency planning order; the father failed to include the transcripts of the permanency planning hearings or request their inclusion via a motion to the court of appeals. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).

Doctor's testimony was sufficient competent evidence to support the trial court's findings of fact because the doctor reviewed the reports prepared by the county department of social services and the guardian ad litem and GAL for the permanency planning hearing and listened to the audio recording of that hearing; the doctor testified that the child had seen, smelled, and been cared for by the foster parents' family for over a year and that removing the child from the foster parents would cause loss and trauma. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).

Futility of Return. - Trial court's findings did not support the trial court's conclusion that further efforts to reunify a child with the child's mother would be futile because the court found the court could consider reunification if the mother overcame the mother's substance abuse and secured stable employment and housing in the next nine months. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).

Waiver of Notice. - Because a parent attended and participated in permanency planning hearings and failed to object to the lack of notice, the parent waived the parent's right to notice. In re E.A.C., - N.C. App. - , - S.E.2d - (July 6, 2021).

Waiver of Further Hearings. - Trial court erred in ordering that further review hearings were waived after a permanency planning hearing because (1) the court did not make any findings in support of the criteria that the child had resided in placement for at least one year, that neither the child's best interests nor the rights of any party required that review hearings be held every six months, or that all parties were aware that the matter could be brought back before the court, and (2) the court could not find the child had been in placement for at least one year. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).

Trial court erred in waiving further review hearings because: (1) the statutory requirement that subject children had resided in the children's placement for a "period of at least one year" was interpreted to require placement for a continuous period of at least 12 months, as aggregating interrupted placement periods could lead to absurd results; and (2) the subject children had not resided in the children's placement for at least 12 continuous months. In re J.T.S., - N.C. App. - , 834 S.E.2d 637 (2019).

Mother's appellate claim that a trial court erred in waiving further review hearings was considered despite her failure to object because the court acted contrary to a statutory mandate. In re J.T.S., - N.C. App. - , 834 S.E.2d 637 (2019).

Trial court erred by waiving further hearings because the child had not been residing in her current placement for at least one year at the time of the permanency planning hearing. In re L.G., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

Order waiving further review hearings was reversed, and the case was remanded for additional findings regarding review hearings because the trial court's disposition order was silent as to the some of the criteria. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Future Review Hearings Properly Waived. - Trial court properly waived future review hearings where it made the statutory fact findings, a social worker's testimony provided support for the factors required by G.S. 7B-906.1(n) and the trial court's waiver of future six-month review hearings, and the parties were aware that the matter could be reviewed upon a motion by any party. In re J.M., - N.C. App. - , 843 S.E.2d 668 (2020).

Because children had been placed in the custody of their legal father, subsection (k) relieved the trial court of any duty to conduct further permanency planning review hearings. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Hearing Untimely. - Permanency planning hearing was untimely because (1) the hearing was required within 12 months of an order removing the subject child from the child's mother, but (2) the hearing was not held within that time. In re J.K., - N.C. App. - , - S.E.2d - (Apr. 4, 2017).

Reports Properly Received. - 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).

Findings Upon Establishing Guardianship. - Trial court's findings when establishing a guardianship for a mother's child did not violate G.S. 7B-906.1(e)(2) because (1) no authority required the court to find every right the mother might possibly retain, and, (2) when the court specified no right the mother retained other than supervised visitation, she retained none. In re M.B., 253 N.C. App. 437, 800 S.E.2d 757 (2017).

Trial court properly performed its statutory duty to verify that a child's relative and the relative's long-term partner understood the legal significance of their appointment as guardians because the testimony of the relative, the testimony from a social worker, and the home study report each provided competent evidence that both of the guardians understood the legal significance of the guardianship appointment. In re B.H., - N.C. App. - , - S.E.2d - (July 6, 2021).

Remand Required. - Remand for further proceedings was necessary because a district court erred by requiring a parent to pay for supervised visits without making necessary findings, waiving further review hearings without making all necessary findings of fact, awarding legal custody to a non-parent without evidence to support its findings that the potential custodians understood the legal significance of the relationship, and awarding custody to a non-parent without stating that the court had applied the proper standard of proof. In re E.M., 249 N.C. App. 44, 790 S.E.2d 863 (2016).

District court erred in entering a permanency planning review order and an order appointing a guardian for a child because the court did not hold a proper hearing inasmuch as it failed to make the required findings of fact, did not first determine that the father was unfit, acted inconsistently with his constitutionally protected parental status, or was otherwise unfit to serve as a parent to the child, and the father was not afforded the opportunity to raise an objection on constitutional grounds at the permanency planning review hearing. In re R.P., 252 N.C. App. 301, 798 S.E.2d 428 (2017).

While the trial court found that the mother presented a risk to the health and safety of the child and that reunification efforts would be futile, it erred in failing to order reunification as a concurrent plan. In re C.P., 258 N.C. App. 241, 812 S.E.2d 188 (2018).

Trial court erred by establishing a guardianship for the child without considering and making written findings regarding whether it is possible for the juvenile to be placed with a parent within the next six months and, if not, why such placement is not in the juvenile's best interests, as required by this section. In re L.G., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

Findings Sufficient. - Findings that efforts to reunify a mother and child should cease were sufficient because (1) the findings were not contradictory, (2) the mother acted in a manner inconsistent with the child's health or safety, and (3) the findings addressed the substance of G.S. 7B-906.2(b). In re M.T.-L.Y., - N.C. App. - , 829 S.E.2d 496 (2019).

Termination of parental rights and permanency plan orders were vacated because the orders did not comply with recent precedent requiring that an initial permanency plan order contain a plan for reunification. In re M.T.-L.Y., - N.C. App. - , 829 S.E.2d 496 (2019).

Trial court correctly concluded that a caretaker was the children's legal father, and its finding that the biological father had not taken actions prior to presenting himself to the court to establish his paternity was supported by competent evidence, because the caretaker's name was placed on the children's birth certificates. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Cited in In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re I.K., 250 N.C. App. 547, 818 S.E.2d 359 (2018).

II. DECISIONS UNDER FORMER G.S. 7B-906.

Editor's Note. - The following cases were decided under former G.S. 7B-906 and prior law.

The common thread running throughout the Juvenile Code 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).

Applicability. - 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).

Construction with Other Sections. - It is not necessary for there to be evidence of mental retardation, mental illness, organic brain syndrome, or some other degenerative mental condition, which would be required in a termination of parental rights determination pursuant to former7A-289.32(7) (see now G.S. 7B-1111), for the evidence to be sufficient in a review hearing under former G.S. 7A-657 to evince a lack of ability to perform mentally that impedes a parent's child care decisions. In re Reinhardt, 121 N.C. App. 201, 464 S.E.2d 698 (1995), overruled in part, 347 N.C. 339, 493 S.E.2d 418 (1997).

Appropriate Visitation Plan - 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).

Evidence of strong emotional bonding between father and child is critically important. It is not, however, determinative. It is but one factor which the trial court must consider in determining what is in the best interest of the child. 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).

Former G.S. 7A-657 contemplates that a child will be returned to the parent from whose custody it was taken if the trial court finds sufficient facts to show that the child will receive proper care and supervision from that parent. 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).

Former G.S. 7A-657 contemplates that a child may be returned to the parent(s) from whose custody it was taken if the trial court finds sufficient facts to show that the child will receive proper care and supervision from the parent(s). However, before custody is restored to that parent, the trial court also must find that such placement is deemed to be in the best interest of the child. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984); In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

It is clear from the statutory framework of the Juvenile Code that one of the essential aims, if not the essential aim, of the dispositional hearing and the review hearing is to reunite the parent(s) and the child after the child has been taken from the custody of the parent(s). In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).

Return of Custody. - Former G.S. 7A-657 contemplates that a child may be returned to the parent from whom custody was taken if the trial court finds sufficient facts to show that the child "will receive proper care and supervision" from the parent, and such placement is deemed in the best interest of the child. In re Isenhour, 101 N.C. App. 550, 400 S.E.2d 71 (1991).

The cessation of reunification efforts is a natural and appropriate result of a court's order initiating a termination of parental rights. In re Brake, 347 N.C. 339, 493 S.E.2d 418 (1997).

Nothing in the North Carolina Juvenile Code precluded the trial court from specifying in its order that the County Department of Social Services (DSS) "may" cease reconciliation efforts to reunite the juvenile with his mother while DSS was pursuing efforts to terminate the mother's parental rights. In re Brake, 347 N.C. 339, 493 S.E.2d 418 (1997).

Removal from one parent to another parent, simply put, does not fit neatly into the language in the first paragraph of former G.S. 7A-657. Consequently, the court must stress the significance of that portion of this section requiring the trial court to enter an order continuing the placement under review or providing for a different placement as is deemed to be in the best interest of the child. 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).

Where custody changes from one parent to another, in the children's best interests, the trial court 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).

Relative Placement. - G.S. 7B-906 (repealed, see now G.S. 7B-906.1) did not require that the relative placement be with one relative or one relative family unit. In re T.P., 217 N.C. App. 181, 718 S.E.2d 716 (2011).

Relative Placement. - In a case in which the legal and physical custody of a child was granted to his paternal grandparents, the trial court made the requisite findings prior to waiving further review hearings pursuant to G.S. 7B-906 (repealed, see now G.S. 7B-906.1) where, from birth until June 2010, the child resided with his maternal grandparents, and, thereafter, he resided with his paternal grandparents; thus, the child had remained with a relative (maternal and paternal grandparents) for more than one year. In re T.P., 217 N.C. App. 181, 718 S.E.2d 716 (2011).

Notice. - Under G.S. 7B-906(c) (repealed, see now G.S. 7B-906.1), a trial court in a custody review hearing was required, if relevant, to make findings of fact regarding a plan of visitation; thus, so notice of a custody review hearing was notice the trial court would consider issues related to visitation. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

Lack of Timeliness. - Where the review hearing of the neglect disposition was not held within the time period provided in G.S. 7B-906(a) (repealed, see now G.S. 7B-906.1) and where the permanency planning orders were late under G.S. 7B-907(c) (repealed, see now G.S. 7B-906.1), the mother was not entitled to relief, as the mother made no attempt to demonstrate the prejudice required for reversal. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006).

Mother was not prejudiced by a trial court's delay in entering its order in a child neglect and pendency proceeding because neither the pendency of the trial court's order, nor an appeal, deprived the mother of reunification with her children; if the mother had complied with the trial court's order, she could have requested a review hearing and sought custody 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, 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).

Consideration of Cost. - Neither G.S. 7B-906 (repealed, see now G.S. 7B-906.1) nor G.S. 7B-907 (repealed, see now G.S. 7B-906.1) barred consideration of the cost of providing the services deemed necessary for reunification when making a change to the permanency plan. 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).

Disposition on Review of Custody Order. - During the review hearing of a trial placement pursuant to former G.S. 7A-657, the trial court may, in its discretion, order the implementation of any dispositional alternative listed in former G.S. 7A-647 (see now G.S. 7B-903). However, if the trial court does not dismiss the case or continue the case pursuant to former G.S. 7A-647(1) (see now G.S. 7B-903), then this section 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).

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, 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. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).

Written Custody Review Order. - As of January 1, 2002, G.S. 7B-906(d) (repealed, see now G.S. 7B-906.1) required any order from a custody review hearing to be reduced to writing, signed, and entered within 30 days of the completion of the hearing. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

When, in a dependency proceeding, a trial court's order transferring custody of a child from a department of social services to foster parents but requiring the department to continue to work towards reunification of the child with her parents was not entered until nine months after the hearing, contrary to the requirement of G.S. 7B-906(d) (repealed, see now G.S. 7B-906.1) that an order be entered within 30 days of a hearing, (1) the department of social services and the child's parents, who sought to appeal the order, were prejudiced, because they could not perfect their appeal; (2) the child was prejudiced, because, while her permanency plan was reunification with her parents, nothing required her foster parents to cooperate with that plan, and, in fact, they sought termination of her parents' parental rights, causing confusion as to what the child's plan actually was; and (3) the permanency planning process was prejudiced, for the aforementioned reasons. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).

Written Findings Were Not Made. - Trial court failed to make findings with respect to G.S. 7B-906(b)(1) (repealed, see now G.S. 7B-906.1) where it found that a child continued to reside with two custodians who had been designated as his guardians, but did not expressly find that the child with in the custody of a relative or suitable person for at least one year. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

Trial court failed to make findings with respect to G.S. 7B-906(b)(3) (repealed, see now G.S. 7B-906.1) where although it made several written findings with respect to a child's mother and her relationship with the child, it failed to make a written finding that neither the child's best interests nor the rights of any other party, including his mother, required the continued holding of review hearings every six months. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

Trial court failed to make findings with respect to G.S. 7B-906(b)(4) (repealed, see now G.S. 7B-906.1) where it failed to make any findings that the mother was aware that she was entitled to another review hearing by filing a motion for review. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

Trial court's judgment regarding the custody disposition of the son, to the effect that the grandmother should have legal and physical custody of the son, could not stand because it lacked certain requisite findings. Pursuant to G.S. 7B-906, regarding custody review hearings, and G.S. 7B-907, regarding permanency planning, the findings needed to be made so that the appellate court could review a determination about whether the placement of the son with a relative was in the child's best interests. In re J.B., 197 N.C. App. 497, 677 S.E.2d 532 (2009).

Written Findings of Fact Required. - Trial court must make written findings of fact satisfying each of the enumerated criteria in G.S. 7B-906(b). In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

Pursuant to G.S. 7B-906(b) (repealed, see now G.S. 7B-906.1), a trial court's custody review and permanency planning order was erroneous where it failed to make the written findings of fact which were needed before further hearings could be waived. In the Matter of V.A., 221 N.C. App. 637, 727 S.E.2d 901 (2012).

Reversal of the portion of a trial court's order waiving future review hearings and remand for the trial court to reconsider whether future review hearings were needed and to make appropriate findings of fact to support its decision was appropriate because the trial court's findings were insufficient under G.S. 7B-906(b) (repealed, see now G.S. 7B-906.1). 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).

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).

In order to have custody restored, former G.S. 7A-657 requires the mother to show only that child will receive proper care and supervision and that such placement is deemed to be in the best interest of the child. Consequently, evidence of the mother's own changed circumstances and evidence that the child's welfare is being adversely affected by the child's present environment are both factors in the equation. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).

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).

Written Findings Were Supported by Competent Evidence. - Trial court complied with G.S. 7B-906(b)(2) where it found, in writing, that the best interest of permanence for the child was to stay with the fit and proper custodians and those findings were supported by the guardian ad litem's report and a report from the Wayne County department of social services. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

Trial court complied with G.S. 7B-906(b)(5) (repealed, see now G.S. 7B-906.1) where it found, in writing, that two people were the child's custodians and that they had been designated as guardians. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

Court's explicit findings that the paternal grandparents were willing and able to be responsible for the children's physical, emotional, educational, and mental well-being and provide a long-term home for the children was sufficient to support verification under this section. In re N.B., 240 N.C. App. 353, 771 S.E.2d 562 (2015).

Court Failed to Make Necessary Statutory Findings. - Trial court's order transferring jurisdiction to Michigan, ending review hearings, and not returning custody to the parents was reversed and the matter was remanded because the court failed to make necessary statutory findings to support its decision and failed to set out an adequate visitation schedule. In re M.M., 230 N.C. App. 225, 750 S.E.2d 50 (2013).

Burden on Parents and Department. - The language of former G.S. 7A-640 and 7A-657 does not place any burden of proof upon either the parent(s) 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).

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, 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).

Periodic Review by Judge. - By this section, the judge is required to conduct a review within six months of the date the order was entered and annually thereafter. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

Trial court made the findings required by G.S. 7B-906 (repealed, see now G.S. 7B-906.1), which were supported by competent evidence, when it ordered a cease reunification efforts. The trial court was not conducting, nor was it required to conduct, a permanency planning hearing as specified in G.S. 7B-907, rather the trial court was conducting a review hearing as required by former G.S. 7B-906. In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004).

Trial court's custody review order did not comply with G.S. 7B-906(c)(3) and (4) (repealed, see now G.S. 7B-906.1) because it did not address the goals of a child's foster care placement or the role her foster parents were to play in her future planning, because the foster parents were foster parents, as they were providing foster care, as defined by G.S. 131D-10.2(9). In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).

Parent's Lack of Ability to Perform Mentally. - Evidence that mother was vulnerable to the influence of others and that she continued to live in a trailer that had the smell of kerosene, the problem that gave rise to the original removal of her minor child from the home, supported a finding that the mother had a diminished capacity inhibiting her from making appropriate decisions for her child's care, which was sufficient in a review hearing under this section to evince a lack of ability to perform mentally that impeded her child care decisions. In re Reinhardt, 121 N.C. App. 201, 464 S.E.2d 698 (1995), overruled in part, 347 N.C. 339, 493 S.E.2d 418 (1997).

Failure to Make Relevant Findings of Fact Regarding Appropriate Visitation Plan 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).

Contemplation of Custody With Whom Child Resides. - 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 former G.S. 7B-906(g) 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. 703(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. 703(a), and former G.S. 7B-906(g) 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).

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, 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 Erred in Holding That There Would Be No Further Hearings. - Trial court erred in relieving all parties and attorneys of further responsibility and stating that there would be no further hearings held in the matter as the general rule under G.S. 7B-907(a) (repealed, see now G.S. 7B-906.1) was that following a permanency planning hearing, subsequent permanency planning hearings were to be held at least every six months thereafter, and that the hearings could be combined with review hearings under G.S. 7B-906 (repealed, see now G.S. 7B-906.1); while the hearings could be dispensed with under certain circumstances, the trial court failed to find all the criteria under former G.S. 7B-906(b) before doing so. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

Trial Court Erred in Denying Mother's Request for Review Hearings. - Termination order was improper because the trial court erred in denying the mother's request for a review hearing under G.S. 7B-906(a) (repealed, see now G.S. 7B-906.1) and by proceeding with the termination hearing before complying with the appellate mandate vacating permanency planning order that changed the permanent plan from reunification to termination. Garrison v. R.V.P. (In re P.P.), 183 N.C. App. 423, 645 S.E.2d 398 (2007).

Evidence Supported Placement With Father. - Trial court did not err in placing one of the mother's three children in the custody of the child's father, where the court found that the father was the proper person to have custody and it was in the child's best interest, and the evidence showed that the father was mentally sound and the child appeared well cared for, relaxed, and happy with the father; the mother's claim that more evidence was needed was insufficient to support a finding of error. In re H.D.F., 197 N.C. App. 480, 677 S.E.2d 877 (2009).

Sufficient Evidence Supported Guardianship Order. - Granting of guardianship to the child's maternal grandparents was supported by evidence that the mother was not employed, did not have stable housing, and refused to participate in individual counseling. In re T.R.M., 188 N.C. App. 773, 656 S.E.2d 626 (2008).

III. DECISIONS UNDER FORMER G.S. 7B-907.

.

Editor's Note. - The following cases were decided under former G.S. 7B-907.

Findings of Fact. - Remand was necessary where, although the trial court's findings of fact in a permanency planning review order were sufficient to support an order ceasing all efforts to reunify respondent with her children, the court failed to make required findings of fact under the specific criteria provided in G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1). In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003).

In a hearing held to determine if a mother was fit to retain custody of her child, the trial court's findings that the mother willfully and intentionally violated the court's orders to transfer all child support and social security payments she received to a friend who had temporary custody of her child, and to stay a specified distance away from the friend, did not explain why it was not in child's best interests that he be returned to his mother, and because the trial court did not make the findings required by subdivision (b)(1) of this section, the appellate court reversed the trial court's judgment and remanded the case for further proceedings. Buncombe County Dep't of Soc. Servs. v. Ledbetter (In re Ledbetter), 158 N.C. App. 281, 580 S.E.2d 392 (2003).

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 G.S. 7B-507(b), 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).

Even though the trial court did not specifically identify the various statutory factors it considered in authorizing a change in permanency planning from reunification to adoption, it was clear from the record that all of them had been taken into account; moreover, since there was competent evidence in the record to support the conclusion that adoption was in the best interest of the children (where one child had become pregnant while staying in the parental home and the other expressed a longing to be adopted by the foster parents), the appeals court would not disturb the order. In re J.C.S., 164 N.C. App. 96, 595 S.E.2d 155 (2004).

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 reunification finding under G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1) in support of its order modifying a permanent plan from termination to guardianship and granting guardianship to a child's foster parents was supported by sufficient evidence that there were risks associated with the child returning home, that earlier attempts at home placement had failed, and that the mother had failed even to contact the social worker associated with her case since the last review. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

Trial court's best interest finding under G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1) in support of its order modifying a permanent plan from termination to guardianship and granting guardianship to a child's foster parents was supported by sufficient evidence based on the length of time that the child had waited for permanence and the other findings of fact. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

Trial court's finding that the foster parents understood the legal significance of the appointment of guardianship and that they had adequate resources to care appropriately for a child in support of its order modifying a permanent plan from termination to guardianship and granting guardianship to the foster parents under G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1) was supported by sufficient evidence that the foster parents had been raising the child for six years. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

Trial court's finding under G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1) that the best plan of care to achieve a safe, permanent home for a child was to grant legal guardianship to the foster parents was a conclusion of law, but it was supported by the findings of fact; its mislabeling was inconsequential. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

Finding under G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1) supporting a modification of a permanent plan from termination to guardianship and a grant of guardianship to a child's foster parents that the child's lack of permanence was resulting in developmental disabilities and that that situation continued was based on competent evidence as the trial court did not err in taking judicial notice of a pre-adoption review order that stated that the child's emotional health had continued to deteriorate, and that permanency for the child was not being achieved in a timely matter; at the time of the finding, it was clear that permanency had not been achieved. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

Permanency plan placing a juvenile with her paternal grandparents was upheld on appeal where the trial court's findings as to the mother's failure to undergo an ordered a psychological evaluation, her failure to conquer her anger problems, the mother's placement of her boyfriend, who was a sexual offender, above the child, and the child's lack of interest in visiting with the mother met the requirements of G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1). In re L.B., 181 N.C. App. 174, 639 S.E.2d 23 (2007).

Trial court erred in entering a permanency planning order as: (1) no findings were made as to the best plan of care for the children as required by G.S. 7B-907(c) (repealed, see now G.S. 7B-906.1); (2) although there was a finding that there were no barriers to the children's adoption, there was not finding as to whether adoption should be pursued as required by former G.S. 7B-907(b)(3); (3) there was no finding as to whether the children should remain in the current placement or be placed in another permanent living arrangement and why as required by former G.S. 7B-907(b)(4); and (4) the only report specifically discussing the children submitted for the permanency planning hearing was the guardian ad litem's report, and it was not incorporated in the findings of fact. In re Z.J.T.B., 183 N.C. App. 380, 645 S.E.2d 206 (2007).

Order ceasing reunification efforts contained the findings required by G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1); among other things, the mother failed to attend all the meetings required by the substance abuse program, failed to continue individual therapy sessions, failed to safe secure housing and income, and had unprotected sex resulting in numerous unplanned pregnancies that strained the mother's already limited resources, including the time and money she could devote to caring for the child. In re K.S, 183 N.C. App. 315, 646 S.E.2d 541 (2007).

Granting of guardianship to the child's maternal grandparents was supported by the trial court's findings that the mother was not employed, did not have stable housing, and refused to participate in individual counseling. In re T.R.M., 188 N.C. App. 773, 656 S.E.2d 626 (2008).

Trial court did not fail to make sufficient findings of fact under G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1) because it considered the stability of a minor child's home life, her ability to interact with her siblings and mother, and her desire to remain in her current living situation with the aunt and uncle; the findings sufficiently supported and explained the basis for the trial court's determination that placement with the father within the next six months would not be in the child's best interest, and the child had to be placed in another permanent living arrangement. 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).

Although there was sufficient evidence in the record to support proper findings regarding a trial court's decision to cease reunification efforts between a mother and child, the actual findings made by the trial court were insufficient because the trial court entered one order that pertained to two parents in very different situations, it did not clearly delineate which findings applied to each parent, and while the record showed that the trial court meant to cease reunification efforts only with regard to the mother, that was not clear in the findings themselves. In re H.J.A., 223 N.C. App. 413, 735 S.E.2d 359 (2012).

Failure to Make Required Findings of Fact. - 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).

Permanency planning order did not comply with the statutory requirements of G.S. 7B-907 (repealed, see now G.S. 7B-906.1) because the issue of the child's possible placement with her paternal grandmother was relevant and not addressed in the order. 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).

Trial court erred in failing to make written findings under G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1) on the rights and responsibilities that would remain with the mother after a guardianship was granted to a child's foster parents; the trial court also erred in stating orally at the hearing that visitation would be up to the guardian as the awarding of visitation was a judicial function that could not be delegated to the child's custodian. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

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).

Trial court's judgment regarding the custody disposition of the son, to the effect that the grandmother should have legal and physical custody of the son, could not stand because it lacked certain requisite findings. Pursuant to G.S. 7B-906, regarding custody review hearings, and G.S. 7B-907, regarding permanency placement, the findings needed to be made so that the appellate court could review a determination about whether the placement of the son with a relative was in the child's best interests. In re J.B., 197 N.C. App. 497, 677 S.E.2d 532 (2009).

Permanency planning order was vacated and the matter was remanded to the trial court for the entry of a new permanency planning order containing adequate findings of fact and conclusions of law because the trial court's findings of fact simply did not address the issues posited in G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1). Although the trial court found that it was not in the best interests of the child to be returned home at the time of the hearing, it made no such findings about whether the child could be returned home within the next six months. In re J.V., 198 N.C. App. 108, 679 S.E.2d 843 (2009).

Trial court's order transferring jurisdiction to Michigan, ending review hearings, and not returning custody to the parents was reversed and the matter was remanded because the court failed to make necessary statutory findings to support its decision and failed to set out an adequate visitation schedule. In re M.M., 230 N.C. App. 225, 750 S.E.2d 50 (2013).

Failure to Make Necessary Determinations. - Trial court failed to determine whether the department of social services had made reasonable efforts to reunite the child with the father, whether reunification would have been futile, or why placement with the father was not in the child's best interest, in any manner other than the issuance of conclusory statements. In re A.E.C., 239 N.C. App. 36, 768 S.E.2d 166 (2015).

Insufficient Evidence to Terminate Reunification Efforts. - 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).

Burden of proof. - 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).

Failure to Timely File Termination Petition Did Not Prejudice the Mother. - Although the Department of Social Services' failure to file its termination petition with 60 days violated G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1), the mother was not prejudiced; the mother failed to attend the termination hearing and did not assert that she would have attended hearing if the petition had been timely filed. In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005).

Trial court was not divested of subject matter jurisdiction over a termination of parental rights matter, even though the petition was not timely filed under G.S. 7B-907, since a mother failed to present any argument as to how the delay prejudiced her or any other party to the matter. In re W.L.M., 181 N.C. App. 518, 640 S.E.2d 439 (2007).

The trial court's Permanency Planning order was reversed where it neither directed DSS to initiate termination of parental rights proceedings against respondent mother nor made findings as permitted by subdivisions (d)(1) to (d)(3). 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).

Where a natural father, as a potential candidate for custody, was dismissed because of his late appearance, the trial court should have considered whether the father was a candidate for custody of a minor child and should have had required interviews by the guardian ad litem and Department of Social Services to further investigate the child's placement with her other natural parent. In re Eckard, 148 N.C. App. 541, 559 S.E.2d 233 (2002), cert. denied, 356 N.C. 163, 568 S.E.2d 192 (2002).

Award of Custody to Great-grandmother. - Termination of aunt's parental rights and award of permanent custody to the child's maternal great-grandmother was supported by substantial, competent evidence and affirmed, even though they had a pending G.S. ch. 50 custody action, where evidence at the G.S. 7B-907 (repealed, see now G.S. 7B-906.1) hearing indicated that the child's aunt, who had been awarded temporary custody, failed to: (1) comply with court orders, including drug testing; (2) make reasonable and timely progress towards permanency, including providing suitable living conditions; (3) prove that it was possible for the child to return to her home within six months; and (4) prove it was in the child's best interests to live with her. In re C.E.L., 171 N.C. App. 468, 615 S.E.2d 427 (2005).

Although it would be better practice to use the words of the statute, the trial court's use of the word "improbable" when concluding that the child's return to the mother was not "possible" did not require remand. In re T.R.M., 188 N.C. App. 773, 656 S.E.2d 626 (2008).

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).

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).

Trial Court Erred in Holding That There Would Be No Further Hearings. - Trial court erred in relieving all parties and attorneys of further responsibility and stating that there would be no further hearings held in the matter as the general rule under G.S. 7B-907(a) (repealed, see now G.S. 7B-906.1) was that following a permanency planning hearing, subsequent permanency planning hearings were to be held at least every six months thereafter, and that the hearings could be combined with review hearings under G.S. 7B-906 (repealed, see now G.S. 7B-906.1); while the hearings could be dispensed with under certain circumstances, the trial court failed to find all the criteria under former G.S. 7B-906(b) before doing so. In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007).

Continuing Duty to Consider Child's Best Interest Made Res Judicata Inapplicable. - Order that deferred to a G.S. ch. 50 custody action but required agency to develop a permanency plan and the child's aunt to take specific steps to comply with it was not a final order; since the trial court also had a continuing G.S. 7B-907 (repealed, see now G.S. 7B-906.1) duty to consider evidence regarding the child's best interests, res judicata did not bar it from terminating the aunt's parental rights. In re C.E.L., 171 N.C. App. 468, 615 S.E.2d 427 (2005).

Time Limitations. - Mother was not entitled to relief from the parental rights termination where the termination petitions were filed more than three months after the limitations period under G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1), which was directory rather than mandatory, had run; the mother failed to show that she was prejudiced by the period of delay, as the mother did not take advantage of visitation and did not have contact with the petitioning agency, and the mother, pursuant to G.S. 7B-1001, could have appealed from either the review hearing ceasing efforts to reunify the family or from the permanency planning order that changed the permanency plan to termination of parental rights. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006).

Where the review hearing of the neglect disposition was not held within the time period provided in G.S. 7B-906(a) (repealed, see now G.S. 7B-906.1) and where the permanency planning orders were late under G.S. 7B-907(c) (repealed, see now G.S. 7B-906.1), the mother was not entitled to relief, as the mother made no attempt to demonstrate the prejudice required for reversal. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006).

Where the lapse between completion of the hearing and the entry of the order was approximately three and 1/2 months, because the order reduced the mother's visitation rights, any delay in the entry of the order actually benefitted the mother in that the reduction of her visitation was delayed; thus, there was no prejudice to the mother. 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 order to warrant reversal of a trial court's permanency planning order for a violation of G.S. 7B-907(a) (repealed, see now G.S. 7B-906.1), an appellant must demonstrate prejudice. In re L.B., 181 N.C. App. 174, 639 S.E.2d 23 (2007).

Department of social services' failure to file a termination of parental rights petition within 60 calendar days of a permanency planning hearing as required by G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1) was not fatal, as the time limitation was directory and was not jurisdictional; further, the father did not show any prejudice resulting from the delay. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

Obligation to Seek Termination. - 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 was consistent with the obligation of the Department of Social Services, under G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1), to seek termination of parental rights within 60 days of a permanency planning hearing. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).

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).

Trial court did not err in adopting a permanent plan as to a mother's children because (1) the mother knew the court intended to adopt such a plan, and (2) the mother waived more formal notice by actively participating in proceedings concerning the plan. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).

Parents' claim that the trial court erred by adopting a permanent plan for the mother's two children at the disposition hearing without the notice required by former G.S. 7B-907(a) (see now G.S. 7B-906.1) was rejected because any error was harmless given the trial court's adoption of a permanent plan at disposition; the parents did not object to the permanent plan. In re J.P., 230 N.C. App. 523, 750 S.E.2d 543 (2013).

Trial court did not err by entering a permanent plan for a mother's two children because she waived her right to notice by participating in the dispositional hearing and failing to object to the lack of notice, and reunification efforts would be inconsistent with the children's health, safety, and need for a permanent home. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Appeals. - Appellate court dismissed a mother's appeal from the trial court's order which found that her child was neglected and set adoption as the permanent plan for the child because the appeal became moot when the trial court entered a subsequent order terminating the mother's parental rights. In re V.L.B., 164 N.C. App. 743, 596 S.E.2d 896 (2004).

Allowing the mother to stay the termination proceedings pending an appeal of a custody review order would have precluded compliance with the termination timeline mandated under G.S. 7B-907, G.S. 7B-1109, and G.S. 7B-1110, and this would have been improper. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Trial court's finding that a maternal aunt and uncle had adequate resources to support a minor child was treated as conclusive and was sufficient to satisfy the statutory requirements of G.S. 7B-907(f) (repealed, see now G.S. 7B-906.1) because the father did not assign as error the trial court's findings of fact; therefore, the findings were deemed to be supported by competent evidence and were conclusive on review. 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).

Trial court's order was reversed as to the portion granting secondary placement of the juveniles with the grandmother because the trial court's conclusions of law were not supported by the findings of fact; both the incorporated findings from the order entered on March 12, 2008 and the trial court's additional findings of fact supported a conclusion that placement with the grandmother was not in the children's best interests. In re E.K., 202 N.C. App. 309, 688 S.E.2d 107 (2010).

Consideration of Cost. - Neither G.S. 7B-906 (repealed, see now G.S. 7B-906.1) nor G.S. 7B-907 (repealed, see now G.S. 7B-906.1) barred consideration of the cost of providing the services deemed necessary for reunification when making a change to the permanency plan. In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).

Consideration of Home Study Reports Supported Guardianship Order. - 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).

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).


§ 7B-906.2. Permanent plans; concurrent planning.

  1. At any permanency planning hearing pursuant to G.S. 7B-906.1, the court shall adopt one or more of the following permanent plans the court finds is in the juvenile's best interest:
    1. Reunification as defined by G.S. 7B-101.
    2. Adoption under Article 3 of Chapter 48 of the General Statutes.
    3. Guardianship pursuant to G.S. 7B-600(b).
    4. Custody to a relative or other suitable person.
    5. Another Planned Permanent Living Arrangement (APPLA) pursuant to G.S. 7B-912.
    6. Reinstatement of parental rights pursuant to G.S. 7B-1114.
  2. Concurrent planning shall continue until a permanent plan is or has been achieved.
  3. At any permanency planning hearing, the court shall adopt concurrent permanent plans and shall identify the primary plan and secondary plan. Reunification shall be a primary or secondary plan unless the court made findings under G.S. 7B-901(c) or G.S. 7B-906.1(d)(3), the permanent plan is or has been achieved in accordance with subsection (a1) of this section, or the court makes written findings that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile's health or safety. The finding that reunification efforts clearly would be unsuccessful or inconsistent with the juvenile's health or safety may be made at any permanency planning hearing, and if made, shall eliminate reunification as a plan. Unless permanence has been achieved, the court shall order the county department of social services to make efforts toward finalizing the primary and secondary permanent plans and may specify efforts that are reasonable to timely achieve permanence for the juvenile.
  4. Unless reunification efforts were previously ceased, at each permanency planning hearing the court shall make a finding about whether the reunification efforts of the county department of social services were reasonable. In every subsequent permanency planning hearing held pursuant to G.S. 7B-906.1, the court shall make written findings about the efforts the county department of social services has made toward the primary permanent plan and any secondary permanent plans in effect prior to the hearing. The court shall make a conclusion about whether efforts to finalize the permanent plan were reasonable to timely achieve permanence for the juvenile.
  5. At any permanency planning hearing under subsections (b) and (c) of this section, the court shall make written findings as to each of the following, which shall demonstrate the degree of success or failure toward reunification:
    1. Whether the parent is making adequate progress within a reasonable period of time under the plan.
    2. Whether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile.
    3. Whether the parent remains available to the court, the department, and the guardian ad litem for the juvenile.
    4. Whether the parent is acting in a manner inconsistent with the health or safety of the juvenile.
  6. If the juvenile is 14 years of age or older, the court shall make written findings in accordance with G.S. 7B-912(a), regardless of the juvenile's permanent plan.

History

(2015-136, s. 14; 2016-94, s. 12C.1(h); 2019-33, s. 11; 2021-100, s. 11.)

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(h), effective July 1, 2016, added subsection (a1).

Session Laws 2019-33, s.11, effective October 1, 2019, in subsection (a1), inserted "is or" preceding "has been achieved" in subsection (b), substituted "shall be" for "shall remain" and inserted "G.S. 7B-906.1(d)(3), the permanent plan is or has been achieved in accordance with subsection (a1) of this section, or the court" in the second sentence, added the third sentence, and inserted "Unless permanence has been achieved" to the beginning of the last sentence; rewrote the first sentence of subsection (c), which formerly read: "At the first permanency planning hearing held pursuant to G.S. 7B-906.1, the court shall make a finding about whether the efforts of the county department of social services toward reunification were reasonable, unless reunification efforts were ceased in accordance with G.S. 7B-901(c) or this section."; and in subsection (d), substituted "the degree of success or failure toward reunifications" for "lack of success" in the introductory paragraph.

Session Laws 2021-100, s. 11, effective October 1, 2021, inserted ", and if made, shall eliminate reunification as a plan” in the next to last sentence in subsection (b).

CASE NOTES

Amendment not Applicable. - Statutory amendment was not applicable in a dependency proceeding because, although the written permanency planning review (PPR) order was signed and filed after the effective date of the amendment, the PPR hearing was conducted and concluded prior to the effective date, and the court's ruling that reunification efforts would be ceased and the child's permanent plan would be changed to custody with paternal cousins was announced in open court on that date. In re E.M., 249 N.C. App. 44, 790 S.E.2d 863 (2016).

Section Not Applicable. - Because termination of parental rights case was not a permanency planning hearing, this section did not apply. In re T.H., - N.C. App. - , 832 S.E.2d 162 (2019).

Multiple Plans Contemplated. - Statute clearly contemplates the use of multiple, concurrent plans including reunification and adoption, and during concurrent planning, the Department of Social Services is required to continue making reasonable reunification efforts until reunification is eliminated as a permanent plan; under the framework of concurrent planning, the prior order here did not explicitly or implicitly eliminate reunification as a permanent plan, and thus the order failed to meet the requirements for appeal. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875 (2018).

Notice of Change in Recommendations or Plan. - Because the hearing was designated as a permanency planning hearing, mother was on notice that the trial court could change the permanent plan for the juveniles and that she needed to present all evidence relevant to her arguments concerning proper; although mother argued that notice of a change in recommendations be given in advance of the hearing, such notice is not required by the chapter and mother's due process rights were not violated. In re H.A.J., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Reunification. - 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).

Trial court's findings of fact were not sufficient to support the court's conclusion that reunification efforts should have ceased since the evidence contained in the agency and guardian ad litem reports, while indicating concern with the parents' extensive substance abuse history and the sustainability of recent improvements, did not support the finding, and the findings provided little indication as to what clear and convincing evidence the court found persuasive in reaching the court's conclusion. In re I.K., 250 N.C. App. 547, 818 S.E.2d 359 (2018).

Findings that efforts to reunify a mother and child should cease were sufficient because (1) the findings were not contradictory, (2) the mother acted in a manner inconsistent with the child's health or safety, and (3) the findings addressed the substance of G.S. 7B-906.2(b). In re M.T.-L.Y., - N.C. App. - , 829 S.E.2d 496 (2019).

Termination of parental rights and permanency plan orders were vacated because the orders did not comply with recent precedent requiring that an initial permanency plan order contain a plan for reunification. In re M.T.-L.Y., - N.C. App. - , 829 S.E.2d 496 (2019).

Ceasing reunification efforts was not error where an assigned social worker's testimony that the mother attempted but had not been able to show that she could obtain and maintain information or parent the children in a safe environment supported the findings, notwithstanding any evidence to the contrary. Even though a finding that the county social services department did not have a release for the mother's mental health records was erroneous, it did not impact the ultimate determination. In re C.M., - N.C. App. - , - S.E.2d - (Sept. 15, 2020).

Even if the trial court had not used the precise language of G.S. 7B-906.2(b), that was not fatal as the trial court's findings addressed the health, safety, and welfare of the children. In re C.M., - N.C. App. - , - S.E.2d - (Sept. 15, 2020).

Under subsection (a1), reunification efforts may be ceased simply upon completion of one of the juvenile's permanent plans, and consequently, that completion of a permanent plan means that no specific factual findings are required under subsection (b). In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

No evidence showed mother abusing medications, having mental health breakdowns, or being involved in unhealthy relationships for three years after child was removed from her care, her limited communications and visits with the child were described as appropriate, and she maintained stable employment and housing; finding reunification efforts would be unsuccessful or inconsistent with child's health was unsupported by clear evidence and did not meet the mandatory requirements of the statute. In re J.C.-b., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Nothing indicates concrete action steps or that timelines were established from contacts, reviews, and assessments to reunify child with mother, department made no diligent or substantial efforts towards reunification in the more than 10 months between court's decision in in March 2019 and the hearing in January 2020, and the statutorily required efforts were arguably non-existent. In re J.C.-b., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Neither the trial court's order nor the department's evaluation provided evidence to support findings specifically addressing the statutory factors; trial court found that the child's therapist felt the child needed to remain with grandmother, that the mother was taking medications for mood and anxiety, and that the mother did not file a report of her counseling or provide a signed release to her counselors, but these findings were inadequate to support the conclusion that reunification efforts should cease. In re J.C.-b., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Trial court's findings of fact reflecting the father's progress directly contradicted the trial court's conclusion that reunification would be unsuccessful or inconsistent with the health or safety of his children; the father completed all his services and changed his behavior based on what he learned from those services. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Trial court failed to make the findings required by G.S. 7B-906.2(b) and (d) to cease reunification efforts, which was reversible error; the evidence did not explain why it would be contrary to the child's welfare to remain in foster care six more months to allow the mother to try to secure housing. In re S.D., - 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).

Trial court erred when it ceased reunification efforts; mother engaged in all services required of her in order to correct the conditions that led to the removal of the children, including requiring the father to move out, and a finding that reunification efforts would be unsuccessful or inconsistent with the children's health, safety, and need for a permanent home was contradictory to all evidence presented to the trial court. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Court failed to make required findings of fact because, while the record contained little evidence presented by the parties on the issue of the mother's availability, the written report to the trial court for the permanency planning hearing included information about the mother's attendance at court dates and scheduled visitations, as well as her failure to attend child and family team meetings; the information contained in the reports did not satisfy the trial court's statutory obligation. In re L.R.L.B., - N.C. - , - S.E.2d - (Apr. 23, 2021).

When a hearing was designated as an initial dispositional hearing but became a combined dispositional and permanency planning hearing, because reunification was part of the initial permanent plan, the trial court was able to eliminate reunification at a subsequent hearing. In re E.A.C., - N.C. App. - , - S.E.2d - (July 6, 2021).

Failure to Adopt Permanency Plan for Child. - In a case in which the father appealed from the trial court's permanency planning order changing legal custody of his child, the trial court improperly entered a permanency planning order granting custody of the child to the child's maternal grandparents as the trial court failed to adopt a permanent plan for the child as mandated by this statute; thus, the appellate court reversed the trial court's permanency planning order awarding custody of the child to the maternal grandparents and waiving further review hearings. In re D.A., 262 N.C. App. 559, 822 S.E.2d 664 (2018).

Evidence Sufficient. - Sufficient evidence supported findings that a mother acted in a manner that was inconsistent with a child's health or safety because the evidence showed the mother (1) did not communicate the mother's exact address or employment status to the department of social services while living in Virginia, (2) had no place to live, (3) made only three payments towards the child's medical care, and (4) stated the mother was unable to care for the child. In re M.T.-L.Y., - N.C. App. - , 829 S.E.2d 496 (2019).

Trial court did not abuse its discretion in its permanency planning order granting guardianship of the child to her grandmother because ample evidence supported the trial court's continuing concerns with the parents' domestic violence, substance abuse, and inadequate housing including the parents testing positive for using marijuana and the cluttered, crowded, dilapidated single-wide trailer in which the parents resided with their newborn and the father's mother. In re I.K., - N.C. App. - , - S.E.2d - (Aug. 18, 2020).

Findings Sufficient. - Trial court made written findings of fact in accordance with the statute, including that mother had not been actively participating in her case plan, failed to maintain housing, missed visitations, and continued using alcohol; while the findings did not use the precise statutory language, the findings did address the necessary factors by showing that the trial court considered the evidence in light of whether reunification would be futile or inconsistent with the child's health and safety. In re H.A.J., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Termination Order Sufficient. - Father's petition for certiorari was denied because a termination order did include findings, unchallenged by the father, that supported cessation of reunification efforts, and the contents of termination orders cured defects in a prior permanency planning order; the father failed to include the transcripts of the permanency planning hearings or request their inclusion via a motion to the court of appeals. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).

Trial court did not make all of the required findings before ceasing reunification efforts, thus a remand was necessary, where it made no finding regarding whether the mother demonstrated a lack of success in participating or cooperating with the county human services agency and the guardian ad litem or whether she has remained available to the court, the county agency, or the guardian ad litem. In re J.M., - N.C. App. - , 843 S.E.2d 668 (2020).

In a case in which a mother and father appealed from an order granting full physical and legal custody of their child to court-approved caretakers, the appellate court concluded the trial court failed to make findings under G.S. 7B-906.2(b) related to whether the parents were acting in a manner inconsistent with their child's health or safety. The order also contained no findings that embraced the requisite ultimate finding that reunification efforts clearly would be unsuccessful or would be inconsistent with the child's health or safety. In re D.A., 258 N.C. App. 247, 811 S.E.2d 729 (2018).

Trial court's order ceasing reunification efforts and excluding reunification of a mother with the mother's children as a permanent plan was not an abuse of discretion because the evidence supported the court's finding that the mother only made some progress with respect to the mother's parenting skills. Moreover, the court did not abuse its discretion in determining that ceasing reunification was in the best interests of the children. In re J.H., 373 N.C. 264, 837 S.E.2d 847 (2020).

Requirements Met. - Trial court complied with its obligations under the statue because it set a primary and secondary plan and determined that no further reunification efforts were required; the trial court's findings, which were supported by testimony and evidence introduced at the hearing, demonstrated that the father completely failed to comply with his case plan while the child was in a safety placement with her sister. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).

Because the trial court's award of custody to the legal father achieved the children's permanent plan in accordance with subsection (a1), the trial court's order satisfied the second prong of subsection (b);because of the disjunctive phrasing of subsection 2(b), the satisfaction of this single prong is sufficient to meet the requirements of the statute as a whole. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Trial court's order encompassed all required findings under subsection (d)(1)-(4) because competent evidence supported the finding that a biological father had not made adequate progress towards his case plan's anticipated goals; competent evidence supported the finding that the biological father's behavior was inconsistent with the health and safety of the children, given his lack of stable and appropriate housing, his active probation orders, and his history of criminal activity. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Requirements Not Met. - Trial court's unsupported conclusory statement that reasonable efforts to reunify the family would have been futile and inconsistent with the children's health or safety did not meet the requirements in this section and case law. In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).

Trial court erred in removing reunification as a primary or secondary plan and in ceasing reunification efforts because the court did not make sufficient findings of fact as the findings were insufficient to demonstrate the degree of success or failure towards reunification. The findings only demonstrated that a social services agency was unable to locate any services that could help a parent progress towards reunification and that the parent was unable to make progress towards reunification because the parent was unable to obtain a U Visa. In re E.A.C., - N.C. App. - , - S.E.2d - (July 6, 2021).

§ 7B-907: 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

(1998-229, ss. 8.1, 25.1; 1999-456, s. 60; 2001-208, ss. 5, 20; 2001-487, s. 101; 2003-62, s. 3; 2003-140, s. 9(d); 2005-398, s. 7; 2007-276, s. 4; 2009-311, s. 7; repealed by 2013-129, s. 25, effective October 1, 2013.)

Editor's Note. - Former G.S. 7B-907 pertained to permanency planning hearing. For present similar provisions pertaining to review and permanency planning hearings, see G.S. 7B-906.1.

§ 7B-908. Post termination of parental rights' placement court review.

  1. The purpose of each placement review is to ensure that every reasonable effort is being made to provide for the permanent plan for the juvenile who has been placed in the custody of a county director or licensed child-placing agency, which is consistent with the juvenile's best interests. At each review hearing the court may consider information from the department of social services, the licensed child-placing agency, the guardian ad litem, the child, the person providing care for the child, and any other person or agency the court determines is likely to aid in the review. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.
  2. The court shall conduct a placement review not later than six months from the date of the termination hearing when both parents' parental rights have been terminated by a petition or motion brought by any person or agency designated in G.S. 7B-1103(a)(2) through (6), or one parent's parental rights have been terminated by court order and the other parent's parental rights have been relinquished under Chapter 48 of the General Statutes, and a county director or licensed child-placing agency has custody of the juvenile. The court shall conduct reviews every six months thereafter until the juvenile is the subject of a decree of adoption:
    1. No more than 30 days and no less than 15 days prior to each review, the clerk shall give notice of the review to the juvenile if the juvenile is at least 12 years of age, the legal custodian or guardian of the juvenile, the person providing care for the juvenile, the guardian ad litem, if any, and 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 child for notice under this subsection or file written documentation with the clerk that the child's current care provider was sent notice of hearing. Only the juvenile, the legal custodian or guardian of the juvenile, the person providing care for the juvenile, and the guardian ad litem may participate in the review hearings, except as otherwise directed by the court. Nothing in this subdivision shall be construed to make the person a party to the proceeding solely based on receiving notice and the right to be heard. Any individual whose parental rights have been terminated or has executed a relinquishment that is no longer revocable shall not be considered a party to the proceeding unless an appeal of the order terminating parental rights is pending, and a court has stayed the order pending the appeal.
    2. If a guardian ad litem for the juvenile has not been appointed previously by the court in the termination proceeding, the court, at the initial six-month review hearing, may appoint a guardian ad litem to represent the juvenile. The court may continue the case for such time as is necessary for the guardian ad litem to become familiar with the facts of the case.
  3. The court shall consider at least the following in its review and make written findings regarding the following that are relevant:
    1. The adequacy of the permanency plans developed by the county department of social services or a licensed child-placing agency for a permanent placement in the juvenile's best interests and the efforts of the department or agency to implement the plans.
    2. Whether the juvenile has been listed for adoptive placement with NC Kids Adoption and Foster Care Network or any other child-specific recruitment program or whether there is an exemption to listing that the court finds is in the child's best interest.
    3. The efforts previously made by the department or agency to find a permanent placement for the juvenile.
    4. Whether the current placement is in the juvenile's best interest.
  4. The court, after making findings of fact, shall do one of the following it finds to be in the best interests of the child:
    1. Affirm the county department's or child placing agency's plan.
    2. Order a different plan designated in G.S. 7B-906.2(a).
  5. The court may (i) order concurrent permanent plans if the court finds concurrent permanency planning to be in the best interests of the juvenile and (ii) specify efforts that are necessary to accomplish a permanent plan designated in subdivisions (1) or (2) of subsection (d) of this section that is in the best interests of the juvenile. If a juvenile is not placed with prospective adoptive parents as selected in G.S. 7B-1112.1, the court may order a placement that the court finds to be in the juvenile's best interest after considering the department's recommendations.
  6. If the juvenile is the subject of a decree of adoption prior to the date scheduled for the review, within 10 days of receiving notice that the adoption decree has been entered, the department of social services shall file with the court and serve on any guardian ad litem for the juvenile written notice of the entry. The adoption decree shall not be filed in the court file. The review hearing shall be cancelled with notice of said cancellation given by the clerk to all persons previously notified.
  7. 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 regarding the contents of the order. The order shall be entered within 10 days of the subsequent hearing required by this subsection.
  8. Repealed by Session Laws 2011-295, s. 10, effective October 1, 2011, and applicable to actions filed or pending on or after that date.

History

(1983, c. 607, s. 1; 1993, c. 537, s. 2; 1998-202, s. 6; 1998-229, ss. 9, 26; 1999-456, s. 60; 2003-62, s. 4; 2005-398, s. 8; 2007-276, s. 5; 2009-311, s. 8; 2011-295, s. 10; 2013-129, s. 27; 2017-161, s. 9; 2019-33, s. 12; 2021-100, s. 12.)

Editor's Note. - This section was originally enacted as G.S. 7B-907. 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. 27, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2007-276, s. 5, effective October 1, 2007, substituted "the subject of a decree of adoption:" for "placed for adoption and the adoption petition is filed by the adoptive parents:" at the end of the introductory paragraph of subsection (b); substituted "the right" for "an opportunity" in the next to last sentence in subdivision (b)(1); in subsection (e), substituted "is the subject of a decree of" for "has been placed for" and substituted "the issuance of the decree of adoption" for "said placement."

Session Laws 2009-311, s. 8, effective October 1, 2009, substituted "the" for "any" throughout the section; in subdivision (b)(1), added the second sentence; in subsection (e), substituted "within 10 days of receiving notice that the adoption decree has been entered, the department of social services shall file with the court and serve on any guardian ad litem for the juvenile written notice of the entry. The adoption decree shall not be filed in the court file. The review" for "written notice of the issuance of the decree of adoption shall be given to the clerk to be placed in the court file, and the review"; and in subsection (f), deleted the former fourth sentence, which read: "Any issue of abuse of discretion by the county department or child-placing agency in the selection process must be raised by the guardian ad litem within 10 days following the date the agency notifies the court and the guardian ad litem in writing of the filing of the adoption petition," and added the last five sentences.

Session Laws 2013-129, s. 27, effective October 1, 2013, substituted "the person" for "the foster parent, relative, or preadoptive parent" in subsection (a); substituted "person" for "foster parent, relative, or preadoptive parent" throughout subdivision (b)(1); and inserted "as selected in G.S. 7B-1112.1" in subdivision (d)(2). For applicability, see editor's note.

Session Laws 2017-161, s. 9, effective October 1, 2017, in the first sentence of subsection (a), substituted "plans" for "plan" and substituted "are consistent" for "is consistent"; rewrote subsection (b), which read: "The court shall conduct a placement review not later than six months from the date of the termination hearing when parental rights have been terminated by a petition brought by any person or agency designated in G.S. 7B-1103(2) through (5) and a county director or licensed child-placing agency has custody of the juvenile. The court shall conduct reviews every six months thereafter until the juvenile is the subject of a decree of adoption:"; in subdivision (c)(1), substituted "permanency plans" for "plan" at the beginning, substituted "placement in" for "placement relative to", and substituted "the plans" for "such plan" at the end; substituted "NC Kids Adoption and Foster Care Network or any other child-specific recruitment program or whether there is an exemption to listing that the court finds is in the child's best interest." for "the North Carolina Adoption Resource Exchange, the North Carolina Photo Adoption Listing Service (PALS), or any other specialized adoption agency." in subdivision (c)(2); substituted "placement" for "home" in subdivision (c)(3); rewrote subsection (d); and added subsection designation (d1) and rewrote that subsection.

Session Laws 2019-33, s. 12, effective October 1, 2019, in subdivision (b)(1), inserted "or guardian" following "legal custodian" in the first and third sentences, deleted "if the juvenile is at least 12 years of age" following "Only the juvenile" and substituted "may participate in" for "shall attend" in the third sentence; and added subsection (e1).

Session Laws 2021-100, s. 12, effective October 1, 2021, substituted "the permanent plan” for "permanent placement plans,” and "is consistent” for "are consistent” in subsection (a); inserted "both parents'” in subsection (b); inserted "or has executed a relinquishment that is no longer revocable” in subdivision (b)(1); and rewrote subsections (d), and (d1).

Legal Periodicals. - For comment, "Termination of Parental Rights," see 21 Wake Forest L. Rev. 431 (1986).

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.

Foster Parents May Not Bring Custody Action. - Nothing in the language of G.S. 48-9.1(1) gives foster parents standing to contest the department's or agency's exercise of its rights as legal custodian; therefore, foster parents are without standing to bring an action seeking custody of minor child placed in their home by defendant. Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981); 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).

The case of Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981) does not prohibit the transfer of legal care, custody and control of a foster child to its foster parents. Oxendine stands for the proposition that foster parents have no standing to bring a custody action pursuant to G.S. 50-13.2 et seq. 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).

But Foster Parents Have Right to Be Heard. - At the very least, foster parents have the right for an opportunity to be heard, a right which derives from the child's right to have his or her best interests protected. 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).

This section recognizes the right of foster parents to participate in review proceedings concerning the placement and care of their foster child after termination of parental rights. In re Scearce, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

This section requires that notice of review be given to foster parents and requires the foster parents to attend the review proceedings. 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).

Intervention by Foster Parents in Custody Proceeding. - In a proceeding brought by DSS, in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child's foster parents to intervene. 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), distinguishing Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981).

Power of Court to Award 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).

Responsibility of Guardian ad Litem in Adoption Process. - The legislature charged the county department of social services or other licensed child-placing agency with the responsibility of selecting adoptive parents. The guardian ad litem's responsibility during this process is to raise any issue of the agency's abuse of discretion within ten days after she receives written notice of the filing of the adoption petition. The legislature provided no other responsibility for the guardian ad litem once a petition for adoption is filed and none seems appropriate. In re James S., 86 N.C. App. 364, 357 S.E.2d 430 (1987).

Under G.S. 48-16(a), the legislature clearly vested the Department of Social Services with the duty and responsibility to make investigations regarding adoptions. Thus, absent any responsibilities or duties to perform, the guardian ad litem is superfluous to an adoption proceeding. In re James S., 86 N.C. App. 364, 357 S.E.2d 430 (1987).

The guardian ad litem is empowered under former G.S. 7A-659(f) (see now this section) to request information about and be consulted concerning the adoption selection process. This includes confidential adoption information regarding adoptive parents. 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).

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).

Guardian ad litem's responsibility to child is intact for the 10-day period after he receives written notice of filing of adoption petition for the purpose of raising any issue of abuse of discretion. 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).

Guardian ad litem who first made a motion to the court for information five days before receiving written notice that an adoption petition had been filed still had a responsibility and a duty, pursuant to former G.S. 7A-659(f) (see now this section), at the time he received notice of the adoption petition to raise any issue of abuse of discretion. 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).

District Court Jurisdiction 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).

Filing of Motion Alleging Abuse in Adoption Process. - In view of G.S. 48-12, which provides that adoption proceeding shall be before the clerk of superior court, any motion alleging abuse of discretion in the adoption process should be filed with the clerk of superior court within the 10-day period provided for in former G.S. 7A-659(f) (see now this section). 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).

Cited in In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005).


§ 7B-909. Review of agency's plan for placement.

  1. The director of social services or the director of the licensed private child-placing agency shall promptly notify the clerk to calendar the case for review of the department's or agency's plan for the juvenile at a session of court scheduled for the hearing of juvenile matters if the juvenile is in the custody of the department or agency and has not become the subject of a decree of adoption within six months following relinquishment of the juvenile for adoption by a parent, guardian, or guardian ad litem under the provisions of Part 7 of Article 3 of Chapter 48 of the General Statutes.
  2. Repealed by 2007-276, s. 6, effective October 1, 2007.
  3. If the court finds on motion of a department of social services or licensed child-placing agency that a consent or relinquishment for adoption necessary for the juvenile to be adopted cannot be obtained, and that no further steps are being taken to terminate the parental rights of the parent from whom consent or relinquishment has not been obtained, the court may order, upon finding that it is in the juvenile's best interest, that any relinquishment for adoption signed by a parent who has surrendered the child for adoption shall be voided pursuant to G.S. 48-3-707(a)(4). Before voiding any relinquishment under this subsection, the court shall require the county department of social services or licensed child-placing agency to give at least 15 days' notice to the relinquishing parent whose rights will be restored. The relinquishing parent shall have the right to be heard on (i) whether the relinquishment should be voided and (ii) the parent's plan to provide for the juvenile if the relinquishment is voided. If after due diligence the relinquishing parent cannot be located, the notice of hearing shall be deposited in the United States mail, return receipt requested, and sent to the address of the parent given in the relinquishment. The date of receipt of the notice is deemed the date of delivery or last attempted delivery.
  4. Notification of the court under this section shall be by a petition for review or motion for review, if the court is exercising jurisdiction over the juvenile. The review shall be conducted within 30 days following the filing of the petition for review unless the court shall otherwise direct. The court shall conduct reviews every six months until the juvenile is the subject of a decree of adoption. However, further reviews are not required after the voiding of a relinquishment under subsection (b1) of this section. The initial review and all subsequent reviews, except a review hearing under subsection (b1) of this section, shall be conducted pursuant to G.S. 7B-908. Any individual whose parental rights have been terminated  or who has relinquished the juvenile for adoption under the provisions of Part 7 of Article 3 of Chapter 48 of the General Statutes shall not be considered a party to the review unless an appeal of the order terminating parental rights is pending, and a court has stayed the order pending the appeal.

History

(1983, c. 607, s. 2; 1993, c. 537, s. 4; 1995, c. 457, s. 6; 1998-202, s. 6; 1998-229, s. 9; 1999-456, s. 60; 2005-398, s. 9; 2007-276, s. 6; 2013-129, s. 28; 2013-236, s. 1; 2013-410, s. 27.)

Editor's Note. - This section was originally enacted as G.S. 7B-908. It has been renumbered at the direction of the Revisor of Statutes.

Session Laws 2013-129, s. 28, amended this section, but was repealed by Session Laws 2013-410, s. 27, effective October 1, 2013.

Effect of Amendments. - Session Laws 2007-276, s. 6, effective October 1, 2007, deleted subsection (b), regarding cases where adoption is dismissed or withdrawn; in subsection (c), substituted "under this section" for "required under subsection (a) or (b) of this section" in the first sentence, deleted "or (b)" in the second sentence, and substituted "the subject of a decree of adoption" for "placed for adoption and the adoption petition is filed by the adoptive parents" in the fourth sentence.

Session Laws 2013-236, s. 1, effective July 3, 2013, substituted "if the juvenile is in the custody of the department or agency and has not become the subject of a decree of adoption within six months following relinquishment of the juvenile for adoption by a parent, guardian, or guardian ad litem under the provisions of Part 7 of Article 3 of Chapter 48 of the General Statutes" for "in any case where" in the introductory paragraph of subsection (a); deleted subdivisions (a)(1) and (a)(2); added subsection (b1); and, in subsection (c), added "or motion for review, if the court is exercising jurisdiction over the juvenile" at the end of the first sentence, deleted the former second sentence, which read "The petition shall set forth the circumstances necessitating the review under subsection (a) of this section," added the present fourth sentence, inserted "except a review hearing under subsection (b1) of this section" in the present fifth sentence, and inserted "or who has relinquished the juvenile for adoption under the provisions of Part 7 of Article 3 of Chapter 48 of the General Statutes" in the present sixth sentence.

CASE NOTES

Editor's Note. - Some of the following case was decided prior to the enactment of this Chapter.

Jurisdiction over Adoption Proceedings. - Chapter 7A specifically directs the district court to conduct periodic reviews of the juvenile's case before an adoption petition is filed. However, jurisdiction over adoption proceedings is vested solely in superior court. Thus, the district court has no jurisdiction to act once a petition for adoption is filed, and its jurisdiction is in abeyance once the petition is filed. Only when an adoption petition is withdrawn or dismissed does the district court recommence its supervision. In re James S., 86 N.C. App. 364, 357 S.E.2d 430 (1987).

Responsibility of Guardian ad Litem in Adoption Process. - Under G.S. 48-16(a), the legislature clearly vested the Department of Social Services with the duty and responsibility to make investigations regarding adoptions. Thus, absent any responsibilities or duties to perform, the guardian ad litem is superfluous to an adoption proceeding. In re James S., 86 N.C. App. 364, 357 S.E.2d 430 (1987).


§ 7B-909.1. Relinquishment to a department of social services.

Before the relinquishment of a juvenile to a department of social services for the purpose of adoption may be executed by a parent who is a respondent in an action under this Subchapter and (i) whose retained counsel has entered a notice of appearance or (ii) who has an attorney whose provisional appointment has been confirmed by the court, each of the following shall occur:

  1. Notice shall be given by any reasonable and timely means of communication to the parent's counsel or, if such counsel is unavailable, to the partner or employee at the attorney's office that the department has made arrangements for the parent to execute a relinquishment at a specific date, time, and location.
  2. The parent shall be advised of the right to seek the advice of the parent's counsel prior to executing the relinquishment and to have the parent's counsel present while executing the relinquishment.

History

(2019-33, s. 13.)

Editor's Note. - Session Laws 2019-33, s. 17, made this section effective October 1, 2019.

§ 7B-910. Review of voluntary foster care placements.

  1. The court shall review the placement of any juvenile in foster care made pursuant to a voluntary agreement between the juvenile's parents or guardian and a county department of social services and shall make findings from evidence presented at a review hearing with regard to:
    1. The voluntariness of the placement;
    2. The appropriateness of the placement;
    3. Whether the placement is in the best interests of the juvenile; and
    4. The services that have been or should be provided to the parents, guardian, foster parents, and juvenile, as the case may be, either (i) to improve the placement or (ii) to eliminate the need for the placement.
  2. The court may approve the continued placement of the juvenile in foster care on a voluntary agreement basis, disapprove the continuation of the voluntary placement, or direct the department of social services to petition the court for legal custody if the placement is to continue.
  3. An initial review hearing shall be held not more than 90 days after the juvenile's placement and shall be calendared by the clerk for hearing within such period upon timely request by the director of social services. An additional review hearing shall be held 90 days thereafter and any review hearings at such times as the court shall deem appropriate and shall direct, either upon its own motion or upon written request of the parents, guardian, foster parents, or director of social services. A juvenile placed under a voluntary agreement between the juvenile's parent or guardian and the county department of social services shall not remain in placement more than six months without the filing of a petition alleging abuse, neglect, or dependency.
  4. The clerk shall give at least 15 days' advance written notice of the initial and subsequent review hearings to the parents or guardian of the juvenile, to the juvenile if 12 or more years of age, to the director of social services, and to any other persons whom the court may specify.

History

(1983, c. 607, s. 2; 1993, c. 537, s. 4; 1995, c. 457, s. 6; 1998-202, s. 6; 1999-456, s. 60; 2001-208, s. 21; 2001-487, s. 101.)

Editor's Note. - This section was originally enacted as G.S. 7B-909. It has been renumbered as this section at the direction of the Revisor of Statutes.

Legal Periodicals. - For article, "The Parentless Child's Right to a Permanent Family," see 46 Wake Forest L. Rev. 1 (2011).

CASE NOTES

Applicability. - Statutory requirements apply to a voluntary placement agreement, but not a temporary parental safety agreement. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50 (2019).

Remand for New Hearing And Entry of Findings of Fact. - Reversal and remand of a trial court's disposition orders and civil custody order was appropriate, and the trial court was instructed to hold a new hearing and enter orders with findings of facts supported by competent evidence that supported its conclusions of law, because, based upon the evidence, there was no factual support for a conclusion that a mother was unfit to have custody of the mother's children. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50 (2019).


§ 7B-910.1. Review of voluntary foster care placements with young adults.

  1. The court shall review the placement of a young adult in foster care authorized by G.S. 108A-48(c) when the director of social services and a young adult who was in foster care as a juvenile enter into a voluntary placement agreement. The review hearing shall be held not more than 90 days from the date the agreement was executed, and the court shall make findings from evidence presented at this review hearing with regard to all of the following:
    1. Whether the placement is in the best interest of the young adult in foster care.
    2. The services that have been or should be provided to the young adult in foster care to improve the placement.
    3. The services that have been or should be provided to the young adult in foster care to further the young adult's educational or vocational ambitions, if relevant.
  2. Upon written request of the young adult or the director of social services, the court may schedule additional hearings to monitor the placement and progress toward the young adult's educational or vocational ambitions.
  3. No guardian ad litem under G.S. 7B-601 will be appointed to represent the young adult in the initial or any subsequent hearing.
  4. The clerk shall give written notice of the initial and any subsequent review hearings to the young adult in foster care and the director of social services at least 15 days prior to the date of the hearing.
  5. When the young adult elects to terminate the agreement, the agreement may be terminated without a return to court. When the department elects to terminate the agreement over the objection of the young adult, the department shall file a motion to bring the matter back before the court for resolution.

History

(2015-241, s. 12C.9(g); 2017-161, s. 10; 2021-100, s. 13.)

Editor's Note. - Session Laws 2015-241, s. 12C.9( l ), made this section effective January 1, 2017.

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-161, s. 10, effective October 1, 2017, substituted "in foster care" for "and foster care" in subsection (d).

Session Laws 2021-100, s. 13, effective October 1, 2021, added subsection (e).

§ 7B-911. Civil child custody order.

  1. Upon placing custody with a parent or other appropriate person, the court shall determine whether or not jurisdiction in the juvenile proceeding should be terminated and custody of the juvenile awarded to a parent or other appropriate person pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-13.7.
  2. When the court enters a custody order under this section, the court shall either cause the order to be filed in an existing civil action relating to the custody of the juvenile or, if there is no other civil action, instruct the clerk to treat the order as the initiation of a civil action for custody.
  3. When entering an order under this section, the court shall satisfy the following:
    1. Make findings and conclusions that support the entry of a custody order in an action under Chapter 50 of the General Statutes or, if the juvenile is already the subject of a custody order entered pursuant to Chapter 50, makes findings and conclusions that support modification of that order pursuant to G.S. 50-13.7.
    2. Make the following findings:
      1. There is not a need for continued State intervention on behalf of the juvenile through a juvenile court proceeding.
      2. At least six months have passed since the court made a determination that the juvenile's placement with the person to whom the court is awarding custody is the permanent plan for the juvenile, though this finding is not required if the court is awarding custody to a parent or to a person with whom the child was living when the juvenile petition was filed.

If the order is filed in an existing civil action and the person to whom the court is awarding custody is not a party to that action, the court shall order that the person be joined as a party and that the caption of the case be changed accordingly. The order shall resolve any pending claim for custody and shall constitute a modification of any custody order previously entered in the action.

If the court's order initiates a civil action, the court shall designate the parties to the action and determine the most appropriate caption for the case. The civil filing fee is waived unless the court orders one or more of the parties to pay the filing fee for a civil action into the office of the clerk of superior court. The order shall constitute a custody determination, and any motion to enforce or modify the custody order shall be filed in the newly created civil action in accordance with the provisions of Chapter 50 of the General Statutes. The Administrative Office of the Courts may adopt rules and shall develop and make available appropriate forms for establishing a civil file to implement this section.

History

(2005-320, s. 4; 2013-129, s. 29.)

Editor's Note. - Session Laws 2005-320, s. 6, made this section effective October 1, 2005, and applicable to juvenile proceedings and civil actions pending or filed on or after that date.

For prior similar provisions, see Session Laws 2003-381, s. 2(a)-(c).

Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 29, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2013-129, s. 29, effective October 1, 2013, rewrote subsections (a) and (c). For applicability, see editor's note.

CASE NOTES

Retention of Jurisdiction. - 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).

Subject Matter Jurisdiction. - 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).

Proper Entry of Order. - There was no requirement that the trial court enter two different orders in a neglect action; the trial court could enter one order for placement in both the juvenile file and the civil file as long as the order was sufficient to support termination of juvenile court jurisdiction and modification of custody. In re A.S., 182 N.C. App. 139, 641 S.E.2d 400 (2007).

Trial court's order stating that it resolved any pending claim for custody complied with G.S. 7B-911 because it contained findings of fact which were relevant to the issue of the child's best interest and welfare, and contained findings which established that the mother failed to seek medical attention for the child, yet the father took appropriate action. 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).

Trial court, in a custody case involving the son where reunification with a parent was the original goal and the county social services agency had obtained legal custody of him while awaiting a permanent disposition, did not enter a proper civil child-custody order pursuant to G.S. 7B-911. It made no findings of fact regarding its decision to transfer the son's juvenile case pursuant to "Chapter 50," G.S. 50-13.1, and to terminate its jurisdiction. In re J.B., 197 N.C. App. 497, 677 S.E.2d 532 (2009).

Trial court's order contained findings of fact relevant to the issue of a child's interest and welfare because the trial court specifically made findings establishing that the mother tested positive for drugs, that she showed up late for visits, that her behavior was erratic during visits, that the father tested negative for drugs, that his residence was appropriate for the child, and that it was in the best interest of the child to award custody to father. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).

Modification of Custody Order. - 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).

Termination of Parental Rights. - Mother's parental rights to three children were properly terminated under G.S. 7B-1111(a)(2) because the children had been in an out-of home-placement since March 2008 neglect proceedings, and the court's order converting the neglect case into a civil custody case, pursuant to G.S. 7B-911, qualified as a "court order" under G.S. 7B-1111; the children were placed with the paternal grandparents after the neglect proceedings and, after a permanency planning review in September 2008, the grandparents were awarded legal and physical custody. In re L.C.R., 226 N.C. App. 249, 739 S.E.2d 596 (2013).

Trial Court Failed to Make Required Findings. - Because the trial court did not make the required findings that there was no need for continued State intervention on behalf of the child, it erred in terminating its jurisdiction over the child by transferring the issue of the child's custody to a North Carolina General Statutes Chapter 50 case; the disposition order contained no findings from which the court of appeals could infer that the trial court considered the extent to which continued State intervention was necessary. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).

Order granting the father custody of a child who was the subject of a juvenile petition was reversed because (1) the court intended to terminate juvenile court jurisdiction but six months had not passed since the court held the child's permanent plan was placing the child with the father, and (2) a finding that this period had passed was required since the child did not live with the father when the juvenile petition was filed. In re J.K., - N.C. App. - , - S.E.2d - (Apr. 4, 2017).

Trial court erred in terminating the juvenile proceeding and initiating a civil action because it made no findings satisfying either subsection (2)(a) or (2)(b), and the findings it did make did not allow the court of appeals to infer that those statutory provisions were met. In re J.D.M.-J., 260 N.C. App. 56, 817 S.E.2d 755 (2018).

Reversal and remand of a trial court's disposition orders and civil custody order was appropriate, and the trial court was instructed to hold a new hearing and enter orders with findings of facts supported by competent evidence that supported its conclusions of law, because, based upon the evidence, there was no factual support for a conclusion that a mother was unfit to have custody of the mother's children. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50 (2019).

Because the juvenile was already the subject of a custody order, the trial court was required to enter an order with findings and conclusions that supported modification of that order, yet no findings or conclusions were made, plus the trial court failed to find that there was not a need for continued State intervention, and remand was required. In re S.M.L., - N.C. App. - , - S.E.2d - (July 21, 2020).

Appellate Court Lacked Jurisdiction. - Appellate court lacked jurisdiction to hear a mother's claim of an alleged violation of G.S. 7B-911(c) as the mother failed to appeal a civil custody order, and G.S. 7B-911(c) applied to civil custody orders, but not to review orders; without proper notice of appeal, the appellate court did not acquire jurisdiction, and neither the court nor the parties could waive the jurisdictional requirements even for good cause shown under N.C. R. App. P. 2. In re H.S.F., 182 N.C. App. 739, 645 S.E.2d 383 (2007).

Appellate court lacked jurisdiction because the lower court failed to comply with G.S. 7B-911 in terminating the jurisdiction of the juvenile court in a purported transfer of a case from the jurisdiction of the juvenile court, as an abuse/neglect/dependency proceeding under G.S. ch. 7B, to a civil action between private parties under G.S. ch. 50; upon remand, the case remained within the jurisdiction of the juvenile court unless and until it terminated its jurisdiction in compliance with G.S. 7B-911 and entered a civil custody order in compliance with G.S. 50-13.1 et seq. Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011).

Applied in In re J.S., 250 N.C. App. 370, 792 S.E.2d 861 (2016).

Cited in In re J.M.D., 210 N.C. App. 420, 708 S.E.2d 167 (2011); In re M.M., 230 N.C. App. 225, 750 S.E.2d 50 (2013); In re M.C., 244 N.C. App. 410, 781 S.E.2d 70 (2015).


§ 7B-912. Juveniles 14 years of age and older; Another Planned Permanent Living Arrangement.

  1. In addition to the permanency planning requirements under G.S. 7B-906.1, at every permanency planning hearing for a juvenile in the custody of a county department of social services who has attained the age of 14 years, the court shall inquire and make written findings regarding each of the following:
    1. The services provided to assist the juvenile in making a transition to adulthood.
    2. The steps the county department of social services is taking to ensure that the foster family or other licensed placement provider follows the reasonable and prudent parent standard as provided in G.S. 131D-10.2A.
    3. Whether the juvenile has regular opportunities to engage in age-appropriate or developmentally appropriate activities.
  2. At or before the permanency planning hearing immediately following the juvenile's seventeenth birthday and at each permanency planning hearing thereafter, the court shall (i) inquire as to whether the juvenile has a copy of the juvenile's birth certificate, Social Security card, health insurance information, drivers license or other identification card, any educational or medical records the juvenile requests, and information about how the juvenile may participate in the foster care 18-21 program authorized by G.S. 108A-48, and (ii) determine the person or entity that should assist the juvenile in obtaining these documents before the juvenile attains the age of 18 years.
  3. The department shall include in its report to the court at every hearing after the juvenile's seventeenth birthday all of the following information:
    1. The department's efforts to identify and secure viable placement options for when the juvenile attains the age of 18 years.
    2. A list of appropriate adults who can serve as resources for the juvenile when the juvenile attains the age of 18 years.
    3. Contact information of the person responsible for overseeing voluntary foster care placements with young adults in the county department of social services with custody or placement responsibility of the juvenile and in the county department of social services in the county where the juvenile plans to reside at the age of 18 years.
    4. If appropriate, whether the juvenile has information about how he or she may maintain contact with his or her siblings, parents, or relatives when the juvenile attains the age of 17 years.
    5. Whether the department has provided the juvenile with a point of contact to secure Medicaid and maintain physical and mental health services for which the juvenile will be eligible when the juvenile attains the age of 18 years.
    6. Whether the department has provided the juvenile with information about educational, vocational, or job plans for when the juvenile attains the age of 18 years.
  4. If the court finds each of the following conditions applies, the court shall approve Another Planned Permanent Living Arrangement (APPLA) as defined by P.L. 113-183, as the juvenile's primary permanent plan:
    1. The juvenile is 16 or 17 years old.
    2. The county department of social services has made diligent efforts to place the juvenile permanently with a parent or relative or in a guardianship or adoptive placement.
    3. Compelling reasons exist that it is not in the best interest of the juvenile to be placed permanently with a parent or relative or in a guardianship or adoptive placement.
    4. APPLA is the best permanency plan for the juvenile.
  5. If the court approves APPLA as the juvenile's permanent plan, the court shall, after questioning the juvenile, make written findings addressing the juvenile's desired permanency outcome.

History

(2015-135, s. 2.6; 2015-136, s. 15; 2021-100, ss. 14, 15.)

Editor's Note. - The sections as enacted by Session Laws 2015-135, s. 2.6, and Session Laws 2015-136, s. 15, are identical.

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 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 2021-100, ss. 14, 15, effective October 1, 2021, rewrote subsection (b); and added subsection (b1).

ARTICLE 10. Modification and Enforcement of Dispositional Orders; Appeals.

Sec.

§ 7B-1000. Authority to modify.

  1. Upon motion in the cause or petition, and after notice, the court may conduct a modification hearing to determine whether the order of the court is in the best interests of the juvenile. The court may modify the order in light of changes in circumstances or the needs of the juvenile and address the issues raised in the motion that do not require a review or permanency planning hearing pursuant to G.S. 7B-906.1.
  2. In any case where the court finds the juvenile to be abused, neglected, or dependent, the jurisdiction of the court to modify any order or disposition made in the case shall continue during the minority of the juvenile, until terminated by order of the court, or until the juvenile is otherwise emancipated.
  3. When a motion is filed to conduct a modification hearing under this section and the guardian ad litem appointed through G.S. 7B-601 has been previously released, the court shall reappoint a guardian ad litem and an attorney advocate. The clerk shall provide the motion and any notice of hearing to the guardian ad litem and the attorney advocate. The hearing on the motion shall not take place until the guardian ad litem and the attorney advocate have been reappointed.
  4. When a motion is filed to conduct a modification hearing under this section and counsel for respondent parents appointed through G.S. 7B-602 has been released, the court shall appoint provisional counsel in accordance with G.S. 7B-602.
  5. 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; 2000-124, s. 3; 2013-129, s. 30; 2021-100, s. 16.)

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 (a) by Session Laws 2013-129, s. 30, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2013-129, s. 30, effective October 1, 2013, deleted "in accordance with G.S. 7B-907" from the last sentence in subsection (a). For applicability, see editor's note.

Session Laws 2021-100, s. 16, effective October 1, 2021, deleted "or vacate” following "modify” in the section heading; rewrote subsection (a); and added subsections (c) through (e).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Applicability. - Mother's argument that a permanency plan failed to comply with G.S. 7B-1000(a) was rejected where the permanency planning order stated that it was entered pursuant to G.S. 7B-906.1, and the mother failed to articulate any legal basis for applying G.S. 7B-1000(a) to an order entered pursuant to G.S. 7B-906.1. In re J.S., 250 N.C. App. 370, 792 S.E.2d 861 (2016).

Finding of Changed Conditions Required. - It is fundamental that before an order may be entered modifying a custody decree, there must be a finding of fact of changed conditions. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428, cert. denied, 316 N.C. 194, 341 S.E.2d 584 (1986).

A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428, cert. denied, 316 N.C. 194, 341 S.E.2d 584 (1986).

For case in which the court found no change in the needs of juvenile requiring that her custody be returned to her parents, see In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23 (1985).

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).

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).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Cited in In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006); In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).


§ 7B-1001. Right to appeal.

  1. In a juvenile matter under this Subchapter, only the following final orders may be appealed directly to the Court of Appeals:
    1. Any order finding absence of jurisdiction.
    2. Any order, including the involuntary dismissal of a petition, which in effect determines the action and prevents a judgment from which appeal might be taken.
    3. Any initial order of disposition and the adjudication order upon which it is based.
    4. Any order, other than a nonsecure custody order, that changes legal custody of a juvenile.
    5. An order under G.S. 7B-906.2(b) eliminating reunification, as defined by G.S. 7B-101(18c), as a permanent plan by either of the following:
      1. A parent who is a party and:
        1. Has preserved the right to appeal the order in writing within 30 days after entry and service of the order.
        2. A termination of parental rights petition or motion has not been filed within 65 days of entry and service of the order.
        3. A notice of appeal of the order eliminating reunification is filed within 30 days after the expiration of the 65 days.
      2. A party who is a guardian or custodian with whom reunification is not a permanent plan.
    6. Repealed by Session Laws 2017-41, s. 8(a), and Session Laws 2017-102, s. 40(f), effective January 1, 2019, and applicable to appeals filed on or after that date.
    7. Any order that terminates parental rights or denies a petition or motion to terminate parental rights.
    8. An order eliminating reunification as a permanent plan under G.S. 7B-906.2(b), if all of the following conditions are satisfied:
      1. The right to appeal the order eliminating reunification has been preserved in writing within 30 days of entry and service of the order.
      2. A motion or petition to terminate the parent's rights is filed within 65 days of entry and service of the order eliminating reunification and both of the following occur:
        1. The motion or petition to terminate rights is heard and granted.
        2. The order terminating parental rights is appealed in a proper and timely manner.
      3. A separate notice of appeal of the order eliminating reunification is filed within 30 days after entry and service of a termination of parental rights order.
  2. Repealed by Session Laws 2021-18, s. 2, effective July 1, 2021, and applicable to appeals filed on or after that date.
  3. In an appeal filed pursuant to subdivision (a)(8) of this section, the Court of Appeals shall review the order eliminating reunification together with an appeal of the order terminating parental rights. If the order eliminating reunification is vacated or reversed, the order terminating parental rights shall be vacated.
  4. Notice of appeal and notice to preserve the right to appeal shall be given in writing by a proper party as defined in G.S. 7B-1002 and shall be made within 30 days after entry and service of the order in accordance with G.S. 1A-1, Rule 58.
  5. Notice of appeal shall be signed by both the appealing party and counsel for the appealing party, if any. In the case of an appeal by a juvenile, notice of appeal shall be signed by the guardian ad litem attorney advocate.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2001-208, s. 25; 2001-487, s. 101; 2005-398, s. 10; 2011-295, s. 11; 2013-129, s. 31; 2015-136, s. 16; 2017-7, s. 4; 2017-41, s. 8(a); 2017-102, s. 40(f); 2019-33, s. 14(a); 2021-18, s. 2; 2021-100, s. 1(b).)

Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 31, applicable to actions filed or pending on or after October 1, 2013.

Session Laws 2015-136, s. 18, made the amendment to this section by Session Laws 2015-136, s. 16, which substituted "G.S. 7B-906.2(b)" for "G.S. 7B-507(c)" in the introductory language of subdivision (a)(5), and substituted "eliminating reunification as a permanent plan" for "to cease reunification" in the introductory language of subdivision (a)(5)a. and in subdivision (a)(5)a.3, applicable to actions filed or pending on or after October 1, 2015.

Session Laws 2017-7, s. 5, made the amendment to subsection (a) of this section by Session Laws 2017-7, s. 4, effective January 1, 2019, and applicable to appeals filed on or after that date.

Session Laws 2017-41, s. 8(b), made the amendment of subsection (a) and addition of subsections (a1) and (a2) by Session Laws 2017-41, s. 8(a), effective January 1, 2019, and applicable to appeals filed on or after that date.

Session Laws 2021-18, s. 5, made the addition of subdivisions (a)(7) and (a)(8), the repeal of subsection (a1), and the substitution of "subdivision (a)(8) of this section, the Court of Appeals" for "subdivision (a1)(2) of this section, the Supreme Court" in subsection (a2), by Session Laws 2021-18, s. 2, effective July 1, 2021, and applicable to appeals filed on or after that date.

Effect of Amendments. - Session Laws 2011-295, s. 11, effective October 1, 2011, and applicable to actions filed or pending on or after that date, in subdivision (a)(5)a.3., substituted "identified as an issue" for "assigned as an error"; and in subsection (b), deleted "Except for orders covered in subdivision (a)(5) of this section" from the beginning, and deleted the last sentence, which read: "Notice of appeal for orders covered in subdivision (a)(5) of this section shall be given in writing by a proper party as defined in G.S. 7B-1002."

Session Laws 2013-129, s. 31, effective October 1, 2013, deleted "as provided in that subsection" following "preserved" in subdivision (a)(5); inserted "and notice to preserve the right to appeal" in subsection (b); and, in subsection (c), in the first sentence, inserted "both the appealing party and" and deleted "and shall be taken only by following direct instruction of the appealing party after the conclusion of the proceeding" following "party, if any." For applicability, see editor's note.

Session Laws 2015-136, s. 16, effective October 1, 2015, substituted "G.S. 7B-906.2(b)" for "G.S. 7B-507(c)" in the introductory language of subdivision (a)(5); and substituted "eliminating reunification as a permanent plan" for "to cease reunification" in the introductory language of subdivision (a)(5)a. and in subdivision (a)(5)a.3. For applicability, see editor's note.

Session Laws 2017-7, s. 4, substituted "Court of Appeals unless otherwise specified" for "Court of Appeals" in subsection (a); deleted "together with an appeal of the termination of parental rights order" preceding "if all of the following apply" in subdivision (a)(5)(a.); and substituted "terminate parental rights shall be made directly to the Supreme Court" for "terminate parental rights" at the end of subdivision (a)(6). For effective date and applicability, see editor's note.

Session Laws 2017-41, s. 8(a), in the first sentence of the introductory language of subsection (a), deleted "in a juvenile matter" following "final order of the court", and deleted "unless otherwise specified" following "Court of Appeals"; rewrote subdivision (a)(5); deleted subdivision (a)(6); and added subsections (a1) and (a2). For effective date and applicability, see editor's note.

Session Laws 2017-102, s. 40(f), effective January 1, 2019, deleted "entry and service of" following "30 days after" in sub-sub-subdivision (a)(5)a.3.; and deleted subdivision (a)(6).

Session Laws 2019-33, s. 14(a), effective October 1, 2019, rewrote the introductory paragraph of subsection (a), which formerly read: "In a juvenile matter under this Subchapter, appeal of a final order of the court shall be made directly to the Court of Appeals. Only the following juvenile matters may be appealed:"; and rewrote the introductory paragraph of subsection (a1), which formerly read: "In a juvenile matter under this Subchapter, appeal of a final order of the court shall be made directly to the Supreme Court in the following juvenile matters."

Session Laws 2021-18, s. 2, added subdivisions (a)(7) and (a)(8); deleted subsection (a1); and substituted "subdivision (a)(8) of this section, the Court of Appeals" for "subdivision (a1)(2) of this section, the Supreme Court" in subsection (a2). For effective date and applicability, see editor's note.

Session Laws 2021-100, s. 1(b), effective October 1, 2021, substituted "G.S. 7B-101(18c)” for "G.S. 7B-101(18b)” in subdivision (a)(5).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Former Provisions. - N.C. R. App. P. 3(b) provides that the time to take appeals in juvenile matters is governed by G.S. 7A-666, and appeals in termination of parental rights cases are governed by G.S. 7A-289.34, but both referenced sections have been repealed and replaced by other provisions; appeals in child custody cases are now governed by G.S. 7B-1001, and appeals in termination of parental rights cases are governed by G.S. 7B-1113. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

Guardian Ad Litem Not "Proper Party." - Guardian ad litem for parents in a termination of parental rights action was not designated as a "proper party" who could give notice of appeal pursuant to G.S. 7B-1001. In re L.B., 187 N.C. App. 326, 653 S.E.2d 240 (2007), aff'd, 362 N.C. 507, 666 S.E.2d 751 (2008).

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).

Mother Had Standing to Bring Appeal. - Although a mother was not served with the juvenile petition, as the child's parent, she was a proper party to appeal the adjudication and disposition order. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204 (2013).

Mother's failure to appeal an initial dispositional order did not deprive the mother of standing to appeal a subsequent dispositional order placing the mother's child in foster care because the mother had no occasion to appeal the initial order which awarded custody of the child to the mother. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).

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).

Mother Did Not Have Standing to Bring Appeal. - Mother had no standing to appeal orders entered concerning children as to whom the mother's parental rights were previously terminated because the mother did not come within any category of persons afforded a statutory right to appeal from a juvenile matter pursuant to G.S. 7B-1001 and G.S. 7B-1002, as (1) the mother's parental rights had been terminated, (2) the mother was not appointed as the children's guardian upon the death of the children's adoptive parent, and (3) nothing showed the mother had custody of the children following the adoptive parent's death. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).

Mother lacked standing to appeal the trial court's dependency and placement orders because she did not come within any category of persons afforded a statutory right to appeal from a juvenile matter. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Immediate Direct Appeal. - Former G.S. 7A-666 (see now this section) authorizes an immediate direct appeal to the Court of Appeals of a juvenile transfer order. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Mother was not entitled to relief from the parental rights termination where the termination petitions were filed more than three months after the limitations period under G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1), which was directory rather than mandatory, had run; the mother failed to show that she was prejudiced by the period of delay, as the mother did not take advantage of visitation and did not have contact with the petitioning agency, and the mother, pursuant to G.S. 7B-1001, could have appealed from either the review hearing ceasing efforts to reunify the family or from the permanency planning order that changed the permanency plan to termination of parental rights. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006).

Trial court, by making a minor child's maternal aunt and uncle the guardians for the child, modified the child's custody from the county department of social services to the aunt and uncle, which allowed the child's father to appeal the permanency planning order as to child pursuant to G.S. 7B-1001(a)(4). As a result, the appellate court had jurisdiction to consider the father's challenge to the permanency planning order on the merits. In re J.V., 198 N.C. App. 108, 679 S.E.2d 843 (2009).

Trial court's order denying a guardian ad litem's motion for relief was appealable because the order determined that a county department of social service's voluntary dismissal of juvenile petitions was effective, thus depriving the trial court of jurisdiction, and preventing a final judgment on the merits from which appeal might have been taken. In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).

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).

Standing to Bring Appeal. - Appellate court declined to address a parent's argument that a trial court erred by adjudicating the step-child of the parent's cousin an abused juvenile because the parent lacked standing to challenge the issue on appeal. In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014).

Time For Appeal. - G.S. 7B-1001 requires a notice of appeal within 10 days of any order of disposition following an order adjudicating a juvenile as neglected. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

Any challenge to the neglect adjudication was not properly before the appellate court because the mother did not appeal within 10 days pursuant to G.S. 7B-1001. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006).

Father's appeal of a trial court's order that a county agency pursue the adoption of the father's child and terminate the father's parental rights was dismissed because the order on appeal was not a final order for purposes of appeal as none of the provisions of G.S. 7B-1001 applied. In re A.R.G., 178 N.C. App. 205, 631 S.E.2d 146 (2006), aff'd in part, modified in part, 361 N.C. 392, 646 S.E.2d 349 (2007).

Although a mother's oral notice of appeal in a termination case was timely under N.C. R. App. P. 3, and thus the trial court used invalid grounds for its order dismissing the mother's appeal, because valid grounds existed on which the trial court's order could have been based, N.C. R. App. P. 25(a) authorized the trial court's actions, and the error was harmless. In re J.L., 184 N.C. App. 750, 646 S.E.2d 861 (2007).

Mother properly and timely appealed from an order terminating her parental rights, G.S. 7B-1001(a)(5)(a)(2) and N.C. R. App. P. 3.1, because the mother's notice of appeal correctly identified the orders from which the appeal was taken, correctly identified the court to which the appeal was taken, was properly signed by both the mother and counsel, was properly served upon all other parties, and was filed within the time constraints contained in G.S. 7B-1001(b). 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).

Respondent claimed that the order entered on her assistive guardian ad litem's motion to withdraw was fatally deficient because it does not make adequate findings or conclusions, but respondent had no right to appeal this order, and even if she did, it would have been lost due to her failure to provide timely written notice of her intent to exercise that right. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116 (2014), review denied 767 S.E.2d 840, 2015 N.C. LEXIS 44 (2015).

Mother's appeal of an order ceasing reunification efforts was untimely and had to be dismissed because her notice of appeal was unquestionably more than the 210 days after the entry of that order In re A.R., 238 N.C. App. 302, 767 S.E.2d 427 (2014).

Trial court filed and entered the termination order on July 23, 2015, petitioner served respondent a copy of the order on July 28, 2015, and thus respondent was served a copy of the termination order within the three-day period, since the intervening Saturday and Sunday was excluded from the three-day period; the last day on which respondent could have filed a timely notice of appeal was August 24, 2015, and because respondent did not file a notice of appeal until August 25, 2015, the notice of appeal was untimely and the appeal was treated as a petition for writ of certiorari. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).

Because there was no final order terminating parental rights from which a parent could appeal until the trial court entered its disposition order, the parent timely filed a notice of appeal within thirty days after entry and service of the disposition order-stating the parent's desire to appeal both the adjudication order and the disposition order. Therefore, the parent's appeal of both the adjudication order and the disposition order was properly before the appellate court. In re A.B.C., 374 N.C. 752, 844 S.E.2d 902 (2020).

Order Transferring Jurisdiction Final. - Court of appeals had jurisdiction to consider a mother's appeal of an order allowing a great aunt's motion to stay proceedings and transfer jurisdiction because the order on appeal was final; the order did not leave the case open for further action by the trial court in order to settle and determine the entire controversy. In re C.M.B., - N.C. App. - , 826 S.E.2d 810 (2019).

Finding of Probable Cause Not Final Order. - A finding of probable cause in a juvenile proceeding was not an appealable "final order" under this section, and evidentiary rulings of the trial court in conducting the probable cause hearing were not properly before the Court of Appeals for review. In re Ford, 49 N.C. App. 680, 272 S.E.2d 157 (1980).

Temporary Dispositional Finding of Neglect Not Final Order. - Mother's appeal from the adjudication and temporary dispositional order finding her children to be neglected was not an appeal from a final order as required by G.S. 7B-1001, and was premature; accordingly, the appellate court denied certiorari as the final disposition would remain in effect since it was not before the court on appeal. In re Laney, 156 N.C. App. 639, 577 S.E.2d 377 (2003), cert. denied, 357 N.C. 459, 585 S.E.2d 762 (2003).

Father was not entitled to appeal a temporary dispositional order of neglect under G.S. 7B-1001(a) as it was not final. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Initial permanency planning order is not a final order under G.S. 7B-1001, and is not subject to an appeal. In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005).

Initial permanency planning order directing adoption for a mother's minor son was not a final order under G.S. 7B-1001 and, therefore, her appeal of that order was dismissed; the initial permanency planning order directing adoption did not change the mother's custodial rights or interest in the proceeding and was not immediately appealable. In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005).

Permanency planning order which continued a child's custody with the department and stated that the permanent plan would be adoption did not change the status quo since custody was given to the department by a previous order, thus the order appealed from did not alter the child's disposition; this was not an order from which the mother was allowed to appeal. In re C.L.S., 175 N.C. App. 240, 623 S.E.2d 61 (2005).

Change in Permanency Plan Order Was Dispositional and Hence, Appealable - Trial court's order, which changed the mother's permanency plan with her minor children from one of reunification to one of termination of parental rights, was a dispositional order that was appealable as a final order. In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003).

Order Not Appealable As Reunification Not Eliminated as Possibility. - Statute clearly contemplates the use of multiple, concurrent plans including reunification and adoption, and during concurrent planning, the Department of Social Services is required to continue making reasonable reunification efforts until reunification is eliminated as a permanent plan; under the framework of concurrent planning, the prior order here did not explicitly or implicitly eliminate reunification as a permanent plan, and thus the order failed to meet the requirements for appeal. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875 (2018).

An adjudication of delinquency is not a final order. No appeal may be taken from such order unless no disposition is made within 60 days of the adjudication of delinquency. In re Taylor, 57 N.C. App. 213, 290 S.E.2d 797 (1982).

An Adjudication of Neglect is Not a Final Order. - Mother's appeal of the trial court's order adjudicating her child neglected was dismissed because she failed to demonstrate that she was entitled to immediate appeal of the trial court's order where the trial court did not enter a final disposition order; it only entered an adjudication order, which included a temporary disposition to the department of social services, pending the initial disposition hearing and associated order, which temporary custody award was analogous to nonsecure custody that was specifically exempted from appeal. In re P.S., 242 N.C. App. 430, 775 S.E.2d 370 (2015).

Oral Notice of Appeal from Final Order. - When the second sentence of former G.S. 7A-666 permitting oral notice of appeal at the hearing, was read in conjunction with the first sentence providing for appellate review only upon any "final order," it appeared that oral notice of appeal given at the time of the hearing must be from a final order. In re Hawkins, 120 N.C. App. 585, 463 S.E.2d 268 (1995).

Trial court lacked jurisdiction under G.S. 7B-1003 to enter an order terminating a father's parental rights while the father's appeal from the court's permanency planning review order was pending before the Court of Appeals of North Carolina. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), cert. denied, 359 N.C. 632, 616 S.E.2d 230 (2005).

Temporary Caregiver. - Paternal step-grandfather has no standing to appeal under G.S. 7B-1002; the fact that paternal step-grandfather was listed on the county's petition for neglect did not make him a party to the action because he was not deemed a custodian in the petitions and was simply listed because he fulfilled the role of a caregiver with regard to the two minor children at issue, with such temporary care not warranting a conclusion that he stood in loco parentis to the children. In re A.P., 165 N.C. App. 841, 600 S.E.2d 9 (2004).

Reunification. - Court failed to make required findings of fact because, while the record contained little evidence presented by the parties on the issue of the mother's availability, the written report to the trial court for the permanency planning hearing included information about the mother's attendance at court dates and scheduled visitations, as well as her failure to attend child and family team meetings; the information contained in the reports did not satisfy the trial court's statutory obligation. In re L.R.L.B., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Appeal of Nonsecure Custody Order. - As the trial court's denial of the motion of the county department of social services (DSS) for review of the foster care board rate provisions of a nonsecure custody order was not a "final order" as defined in G.S. 7B-1001, and as nonsecure custody orders were excluded from the list of appealable juvenile orders set out in G.S. 7B-1001, DSS had no right of appeal from the trial court's ruling. In re A.T., 191 N.C. App. 372, 662 S.E.2d 917 (2008).

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).

Appeal of Order Changing Legal Custody of Child. - In a case in which the father appealed from the trial court's permanency planning order changing legal custody of his child, the trial court improperly entered a permanency planning order granting custody of the child to the child's maternal grandparents as the trial court failed to adopt a permanent plan for the child as mandated by statute; thus, the appellate court reversed the trial court's permanency planning order awarding custody of the child to the maternal grandparents and waiving further review hearings. In re D.A., 262 N.C. App. 559, 822 S.E.2d 664 (2018).

Review Order not Final. - In dependency proceedings, a trial court's order finding that an agency should pursue termination of a father's parental rights and adoption of the father's child by the child's foster parents, based on a finding that the child's placement with the father was "unlikely" and that it was in the child's best interests for the agency to pursue termination, was not a final order subject to appeal under G.S. 7B-1001(4). In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).

Appeals Dismissed But Petitions for Certiorari Allowed. - Court of appeals had to dismiss an appeal by a mother and father of an order terminating their parental rights because they did not sign the notices of appeal, and their amended notices of appeal, which bore their signatures, were filed outside the 30-day deadline imposed by G.S. 7B-1001(b); however, because the timely notices of appeal, together with the amended notices of appeal, provided record evidence that the mother and father desired to pursue the appeal, understood the nature of the appeal, and cooperated with counsel in filing the notice of appeal, the court of appeals exercised its discretion pursuant to N.C. R. App. P. 21(a)(1) and allowed the petitions for writ of certiorari the mother and father filed to permit consideration of their appeals on the merits so as to avoid penalizing the mother and father for their attorneys' errors. In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008), review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).

Although a parent's notice of appeal did not reference the civil custody order entered, the appellate court in its discretion granted the parent's petition for writ of certiorari and reviewed the civil custody order along with the disposition orders. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50 (2019).

Applied in In re B.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005); In re A.K.D., 227 N.C. App. 58, 745 S.E.2d 7 (2013); In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013); In re L.L.O., 252 N.C. App. 447, 799 S.E.2d 59 (2017).

Cited in In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007); In re N.A.L., 193 N.C. App. 114, 666 S.E.2d 768 (2008); In re K.C., 199 N.C. App. 557, 681 S.E.2d 559 (2009); In re H.J.A., 223 N.C. App. 413, 735 S.E.2d 359 (2012); In re A.E.C., 239 N.C. App. 36, 768 S.E.2d 166 (2015); In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016); In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017); In re J.D.A.D., 253 N.C. App. 53, 801 S.E.2d 653 (2017).


§ 7B-1002. Proper parties for appeal.

Appeal from an order permitted under G.S. 7B-1001 may be taken by:

  1. A juvenile acting through the juvenile's guardian ad litem previously appointed under G.S. 7B-601.
  2. A juvenile for whom no guardian ad litem has been appointed under G.S. 7B-601. If such an appeal is made, the court shall appoint a guardian ad litem pursuant to G.S. 1A-1, Rule 17 for the juvenile for the purposes of that appeal.
  3. A county department of social services.
  4. A parent, a guardian appointed under G.S. 7B-600 or Chapter 35A of the General Statutes, or a custodian as defined in G.S. 7B-101 who is a nonprevailing party.
  5. Any party that sought but failed to obtain termination of parental rights.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2005-398, s. 11.)

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Guardian Ad Litem Not "Proper Party." - Guardian ad litem for parents in a termination of parental rights action was not designated as a "proper party" who could give notice of appeal pursuant to G.S. 7B-1001. In re L.B., 187 N.C. App. 326, 653 S.E.2d 240 (2007), aff'd, 362 N.C. 507, 666 S.E.2d 751 (2008).

Mother Had Standing to Bring Appeal. - Although a mother was not served with the juvenile petition, as the child's parent, she was a proper party to appeal the adjudication and disposition order. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204 (2013).

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).

Mother Did Not Have Standing to Bring Appeal. - Mother had no standing to appeal orders entered concerning children as to whom the mother's parental rights were previously terminated because the mother did not come within any category of persons afforded a statutory right to appeal from a juvenile matter pursuant to G.S. 7B-1001 and G.S. 7B-1002, as (1) the mother's parental rights had been terminated, (2) the mother was not appointed as the children's guardian upon the death of the children's adoptive parent, and (3) nothing showed the mother had custody of the children following the adoptive parent's death. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).

Standing to Bring Appeal. - Appellate court declined to address a parent's argument that a trial court erred by adjudicating the step-child of the parent's cousin an abused juvenile because the parent lacked standing to challenge the issue on appeal. In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014).

Mother lacked standing to appeal the trial court's dependency and placement orders because she did not come within any category of persons afforded a statutory right to appeal from a juvenile matter. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

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).

Temporary Caregiver. - Paternal step-grandfather has no standing to appeal under G.S. 7B-1002; the fact that paternal step-grandfather was listed on the county's petition for neglect did not make him a party to the action because he was not deemed a custodian in the petitions and was simply listed because he fulfilled the role of a caregiver with regard to the two minor children at issue, with such temporary care not warranting a conclusion that he stood in loco parentis to the children. In re A.P., 165 N.C. App. 841, 600 S.E.2d 9 (2004).

County May Not Appeal. - It is manifest that this statute (former G.S. 7A-667) does not empower a county to take an appeal in a juvenile proceeding. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).

Cited in In re Brown, 141 N.C. App. 550, 539 S.E.2d 366 (2000).


§ 7B-1003. Disposition pending appeal.

  1. During an appeal of an order entered under this Subchapter, the trial court may enforce the order unless the trial court or an appellate court orders a stay.
  2. Pending disposition of an appeal, unless directed otherwise by an appellate court or subsection (c) of this section applies, the trial court shall:
    1. Continue to exercise jurisdiction and conduct hearings under this Subchapter with the exception of Article 11 of the General Statutes; and
    2. Enter orders affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile.
  3. Pending disposition of an appeal of an order entered under Article 11 of this Chapter where the petition for termination of parental rights was not filed as a motion in a juvenile matter initiated under Article 4 of this Chapter, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile. Upon the affirmation of the order of adjudication or disposition of the court in a juvenile case by the Court of Appeals, or by the Supreme Court in the event of an appeal, the court shall have authority to modify or alter its original order of adjudication or disposition as the court finds to be in the best interests of the juvenile to reflect any adjustment made by the juvenile or change in circumstances during the period of time the case on appeal was pending, provided that if the modifying order be entered ex parte, the court shall give notice to interested parties to show cause, if there be any, within 10 days thereafter, as to why the modifying order should be vacated or altered.
  4. 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, the court shall consider the opinion of the mental health professional who performed the evaluation under G.S. 7B-503(b) before returning the juvenile to the custody of that individual pending resolution of an appeal.
  5. The provisions of G.S. 7B-903.1 shall apply to any order entered during an appeal that provides for the placement or continued placement of a juvenile in foster care.

History

(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 12; 1998-202, s. 6; 1999-318, s. 8; 1999-456, s. 60; 2001-208, s. 27; 2001-487, s. 101; 2003-140, s. 8; 2005-398, s. 12; 2019-33, s. 14(b).)

Effect of Amendments. - Session Laws 2019-33, s. 14(b), effective October 1, 2019, substituted "G.S. 7B-903.1" for "subsections (b), (c), and (d) of G.S. 7B-905" in subsection (e).

Legal Periodicals. - 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.

Constitutionality of Former G.S. 7A-289. - Former G.S. 7A-289, permitting the district court to enter a temporary custody order affecting a juvenile who is appealing a commitment order of the court, was not unconstitutional on the ground that the statute deprived the juvenile of the right to bail. In re Martin, 9 N.C. App. 576, 176 S.E.2d 849 (1970), decided under former G.S. 7A-289.

Construction. - Because a county's department of social services (DSS) chose to file a petition to terminate parental rights, there were two actions relating to the child: the neglect proceeding and the termination of parental rights (TPR) proceeding. DSS's claim that the trial court was free to act in the neglect proceeding while the TPR order was on appeal did not comport with the legislature's intent in enacting G.S. 7B-1003, as revealed by the long-standing interpretation given to G.S. 7B-1003 and its predecessor versions, as well as the recent amendments. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789 (2009).

Section Controls over G.S. 1-294. - Although G.S. 1-294 states the general rule regarding jurisdiction of the trial court pending appeal, it is not controlling where there is a specific statute, such as former G.S. 7A-669 (see now this section), addressing the matter in question. 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).

When considering whether a trial court had jurisdiction to grant a motion to terminate parental rights that was filed during the pendency of an appeal from the trial court's dispositional order, G.S. 7B-1003 controlled over the general rule in G.S. 1-294 because G.S. 7B-1003 was a specific statute that addressed the trial court's jurisdiction during the pendency of an appeal, under the Juvenile Code. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).

Section Permits Court to Circumvent Recalcitrant Parties. - Without authority of the district court to provide for the treatment of a neglected child pending appeal, a recalcitrant party could frustrate the efforts of the court to provide for the child's best interests by simply entering notice of appeal. 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).

Trial Court's Authority Pending Appeal. - Termination of the mother's parental rights was proper based on willful abandonment of her child as the mother made no effort to contact the child and paid nothing toward his support during the six months immediately preceding the filing of the grandparents' petition to terminate because, while her parental rights had been previously terminated, there was no evidence that the mother sought to stay the order while her appeal was pending, or otherwise requested visitation with the child from the trial court or the grandparents; she was not prohibited from contacting and visiting the child; and she demonstrated almost no interest in the child since losing custody of him. In re D.E.M., 254 N.C. App. 401, 802 S.E.2d 766 (2017), aff'd, 370 N.C. 463, 809 S.E.2d 567, 2018 N.C. LEXIS 55 (2018).

Father properly perfected his appeal, and with knowledge of that appeal, the trial court proceeded with a hearing for termination of the father's parental rights; thus, the trial court clearly acted beyond the limitations statutorily placed on its subject matter jurisdiction; the trial court conducted the hearing on the motion to terminate while the disposition of the father's appeal from the remand orders was pending. In re J.M., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Emergency Commitment Held Improper. - Written order which merely stated that it was an "emergency commitment," without stating any supporting reasons or findings of fact, was not proper. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988), holding, however, that juvenile had not shown prejudice from such order.

Need to Protect Children Pending Appeals. - As to a trial court's authority to enter orders pending an appeal, the rule adopted by the General Assembly for abuse, neglect, and dependency proceedings (G.S. 7B-1003(b)(2)) is that the trial court may only enter orders affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile; if the appeal arises out of a termination of parental rights petition, then under G.S. 7B-1003(c) the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile. The language in both subsections limits the trial court's authority to the traditionally-recognized need to protect children pending appeals. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789 (2009).

Plain language of the statute requires a holding that G.S. 7B-1003(c) provides that if a termination of parental rights (TPR) order resulting from a petition has been appealed, then the trial court has jurisdiction - in both the TPR action and the underlying abuse, neglect, and dependency action - only to enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789 (2009).

Trial Court's Authority Pending Appeal. - In the context of the authority of a trial court pending an appeal, if a county's department of social services (DSS) files a motion in a cause to terminate parental rights, then G.S. 7B-1003(b) applies, but if DSS files a petition, initiating a new action, then G.S. 7B-1003(c) applies. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789 (2009).

Trial court lacked jurisdiction under G.S. 7B-1003 to enter an order terminating a father's parental rights while the father's appeal from the court's permanency planning review order was pending before the Court of Appeals of North Carolina. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), cert. denied, 359 N.C. 632, 616 S.E.2d 230 (2005).

Trial Court Improperly Failed to Comply with Appellate Mandate. - Termination order was improper under circumstances in which the trial court proceeded with the termination hearing before complying with the appellate mandate vacating permanency planning order, which changed the permanent plan from reunification to termination; the legislature did not intend for its amendment of G.S. 7B-1003 to divest trial courts of jurisdiction over termination petitions during appeals of dispositional orders, but to nonetheless allow trial courts to avoid the effect of those appeals once they were decided. Garrison v. R.V.P. (In re P.P.), 183 N.C. App. 423, 645 S.E.2d 398 (2007).

This section did not deprive the trial court of jurisdiction to terminate the mother's parental rights during the pendency of the custody review order appeal; G.S. 7B-1003 applied only to dependency proceedings, not to termination proceedings, and allowing parents to delay termination proceedings by appealing custody review orders would have thwarted G.S. 7B-100(5), which sought to place children in safe, permanent houses within a reasonable amount of time. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

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 because (1) the statute only barred the trial court from exercising jurisdiction or holding hearings before the appellate court's mandate issued, (2) the mandate's issuance returned the power to exercise subject matter jurisdiction to the trial court, and (3) the trial court did not exercise jurisdiction until after the mandate issued, as the trial court did not hear or decide the motion until after that issuance. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).

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, which was unnecessary to protect parental rights, but which interfered with addressing a child's needs, and was consistent with the obligation of the Department of Social Services, under G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1), to seek termination of parental rights within 60 days of a permanency planning hearing; allowing the timing of the filing of a termination motion to decide if the trial court had jurisdiction elevated form over substance. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).

By the statute's own plain language, G.S. 7B-1003 did not state that a trial court lacked jurisdiction over termination of parental rights proceedings during pendency of an appeal, but instead specified that a trial court may not "exercise" the jurisdiction the court has until the appeal is resolved and the mandate has issued. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).

Appeal of Permanency Planning Order Not Mooted. - After a mother filed a notice of appeal of a permanency planning order under G.S. 7B-1003(b), the trial court no longer had jurisdiction to rule on the petitions to terminate her parental rights under G.S. 7B-1101; consequently, the order terminating the mother's parental rights was void ab initio, and did not render moot the appeal of the permanency planning order. In re Z.J.T.B., 183 N.C. App. 380, 645 S.E.2d 206 (2007).

Lack of Timeliness. - Mother was not prejudiced by a trial court's delay in entering its order in a child neglect and pendency proceeding because neither the pendency of the trial court's order, nor an appeal, deprived the mother of reunification with her children; if the mother had complied with the trial court's order, she could have requested a review hearing and sought custody 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).

Exercise of Jurisdiction Improper. - Trial court lacked jurisdiction to amend summons in an abuse, neglect and dependency proceeding. Mother had appealed termination of parental rights, and under G.S. 7B-1003(c), trial court had no authority - even in an underlying action - to enter any orders other than ones affecting the custody and/or placement of the juvenile. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789 (2009).

Applied in In re J.C.S., 164 N.C. App. 96, 595 S.E.2d 155 (2004).

Cited in In re Baby Boy, 238 N.C. App. 316, 767 S.E.2d 628 (2014).


§ 7B-1004. Disposition after appeal.

When an order of the court is affirmed by the Court of Appeals or by the Supreme Court, the trial court may modify or alter the original order as the court finds to be in the best interests of the juvenile to reflect any change in circumstances during the period of time the appeal was pending. If the modifying order is entered ex parte, the court shall give notice to interested parties to show cause within 10 days thereafter as to why the modifying order should be vacated or altered.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2005-398, s. 13.)

CASE NOTES

Cited in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).


ARTICLE 11. Termination of Parental Rights.

Sec.

§ 7B-1100. Legislative intent; construction of Article.

The General Assembly hereby declares as a matter of legislative policy with respect to termination of parental rights:

  1. The general purpose of this Article is to provide judicial procedures for terminating the legal relationship between a juvenile and the juvenile's biological or legal parents when the parents have demonstrated that they will not provide the degree of care which promotes the healthy and orderly physical and emotional well-being of the juvenile.
  2. It is the further purpose of this Article to recognize the necessity for any juvenile to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all juveniles from the unnecessary severance of a relationship with biological or legal parents.
  3. Action which is in the best interests of the juvenile should be taken in all cases where the interests of the juvenile and those of the juvenile's parents or other persons are in conflict.
  4. This Article shall not be used to circumvent the provisions of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act.

History

(1977, c. 879, s. 8; 1979, c. 110, s. 6; 1998-202, s. 6; 1999-223, s. 5; 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 survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For survey of 1982 law relating to family law, see 61 N.C.L. Rev. 1155 (1983).

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 comment, "Termination of Parental Rights," see 21 Wake Forest L. Rev. 431 (1986).

For article, "The Parental Rights of Unwed Fathers: A Developmental Perspective," see 20 N.C. Cent. L.J. 45 (1992).

For note, "M.L.B. v. S.L.J.: Protecting Familial Bonds and Creating a New Right of Access in the Civil Courts," see 76 N.C.L. Rev. 621 (1998).

For comment, "N.C. Gen. Stat. § 48-3-601 and N.C. Gen. Stat. § 7B-1111: A Putative Father's Right to Be a Father,” see 41 Campbell L. Rev. 201 (2019).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Jurisdiction. - Trial court properly terminated a father's parental rights to his children because, while it was undisputed that he lacked minimum contacts with North Carolina, due process did not require a nonresident parent to have minimum contacts with the State to establish personal jurisdiction for purposes of termination of parental rights proceedings since the protections usually afforded by the minimum contacts requirement were outweighed by the State's interest in adjudicating the status of children who resided in the state. In re F.S.T.Y., 374 N.C. 532, 843 S.E.2d 160 (2020).

The exclusive judicial procedure to be used in termination of parental rights cases is prescribed by the legislature in former G.S. 7A-289.22 (see now this section). Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917 (1991).

This Article (see now Chapter 7B, Article 11) exclusively controls the procedure to be followed in termination of parental rights, and the Rules of Civil Procedure (G.S. 1A-1) are inapplicable to such a proceeding. In re Peirce, 53 N.C. App. 373, 281 S.E.2d 198 (1981).

The provisions of this Article (see now Chapter 7B, Article 11) adequately assure respondents of procedural due process protection. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Rules of Civil Procedure Not Superimposed on Hearings under Article. - This Article (see now Chapter 7B, Article 11) comprehensively delineates in detail the judicial procedure to be followed in the termination of parental rights. It provides for the basic procedural elements which are to be utilized in these cases. Due to the legislature's prefatory statement in former G.S. 7A-289.22 (see now this section) with regard to its intent to establish judicial procedures for the termination of parental rights, and due to the specificity of the procedural rules set out in the article, the legislative intent was that this Article (see now Chapter 7B, Article 11) exclusively control the procedure to be followed in the termination of parental rights. It was not the intent that the requirements of the Rules of Civil Procedure, G.S. 1A-1, be superimposed upon the requirements of this Article. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982).

The judicial procedure to be used in termination of parental rights cases is prescribed by the legislature in this Article. The Rules of Civil Procedure, G.S. 1A-1, while they are not to be ignored, are not superimposed upon these hearings. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982).

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).

Effect on Chapter 50A. - While a determination of jurisdiction over child custody matters will precede a determination of jurisdiction over parental rights, it does not supplant the parental rights proceedings; the language of subdivision (4) of this section (now G.S. 7B-1100(4)) is that it shall not be "used to circumvent" Chapter 50A, G.S. 50A-1, et seq., not that it shall be "in conformity with" Chapter 50A. In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73 (1985).

Counterclaim for Termination of Parental Rights. - Given both the statement of legislative intent in G.S. 7B-1100(1) and the specificity of the procedures in G.S. 7B-100 et seq., Article 11 of Chapter 7B provides the exclusive procedures to be used in a termination of parental rights proceeding; a defendant therefore cannot rely on G.S. 1A-1, N.C. R. Civ. P. 13 as the basis for a counterclaim for termination of parental rights. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007).

G.S. 7B-1100 et seq. does not provide a procedure through which a party may counterclaim for termination of parental rights in response to a complaint for child visitation; rather, Article 11 contemplates that a termination petition should be brought in a separate action. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007).

Because G.S. 7B-1100 et seq. provided the exclusive procedures for a termination of parental rights proceeding and contemplated that a termination petition be brought in a separate action, the trial court lacked subject matter jurisdiction over a termination of parental rights action brought as a counterclaim to a visitation action; although the trial court had tried to rectify the error by having summonses issued under G.S. 7B-1106(a), the issuance of a summons alone did not vest a trial court with subject matter jurisdiction over an action that was never properly commenced. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007).

Final Order. - In dependency proceedings, a trial court's order finding that an agency should pursue termination of a father's parental rights and adoption of the father's child by the child's foster parents, based on a finding that the child's placement with the father was "unlikely" and that it was in the child's best interests for the agency to pursue termination, was not a final order subject to appeal under G.S. 7B-1001(4). In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).

Findings and Conclusions of Court. - In a proceeding to terminate parental rights pursuant to this Article (see now Chapter 7B, Article 11), the trial judge must find facts based on the evidence and make conclusions of law which resolve the ultimate issue of whether neglect authorizing termination of parental rights is present at that time. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

It was not an abuse of discretion, in a termination of parental rights proceeding, for a trial court to find that the subject child's adoption by the child's foster parents better served the child's best interests than placement of the child with the child's relatives because the court (1) made findings regarding the relevant provisions of G.S. 7B-1110(a) and G.S. 7B-1100, (2) made extensive findings as to the relative situations of the foster parents and the child's relatives, and (3) specifically provided the court's reasons for determining that the child's best interests would be served by termination of parental rights and subsequent adoption by the child's foster parents, finding the foster parents had provided the child with a safe, stable, home, and the relatives did not timely present themselves in a reasonable time to provide the child a safe permanent home. In re D.R.F., 204 N.C. App. 138, 693 S.E.2d 235 (2010), review denied, 705 S.E.2d 358, 2010 N.C. LEXIS 1041 (2010), review dismissed, 705 S.E.2d 359 (2010), review denied 2010 N.C. LEXIS 1041 (2010).

Summary Proceeding Not Allowed. - Article 24 of Chapter 7A does not provide for a summary proceeding to determine whether the petitioner has proven the existence of one or more of the grounds for termination. Thus, the trial court erred in granting petitioners' motion for partial summary judgment. Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917 (1991).

Dual Burden of Proof Where Child Was Native American. - Where a minor child's status as a Native American made a termination proceeding under this Article also subject to the provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.), the federal provision did not require that the North Carolina statutory grounds to terminate parental rights be proven beyond a reasonable doubt. Rather, a dual burden of proof was created in which the state provisions and federal provisions had to be satisfied separately; i.e., the state grounds for termination had to be supported by clear and convincing evidence, while the federal law required evidence which justified termination beyond a reasonable doubt. In re Bluebird, 105 N.C. App. 42, 411 S.E.2d 820 (1992).

Permanent Plan of Care. - The legislature has enunciated a public policy that every child should have a permanent plan of care. Because adoption is more likely than a custody proceeding between non-parents to result in a permanent plan of care, and because the superior court has jurisdiction over adoptions, that court's jurisdiction supersedes that of the district court with regard to the custody of a child who is the subject of a simultaneous adoption and custody proceeding. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995).

Upon the entry of an interlocutory order of adoption by the superior court, the jurisdiction of the district court with regard to the custody of the child who is the subject of the interlocutory order is in abeyance until such time as the interlocutory decree is vacated, the adoption petition is dismissed, or a final decree of adoption is entered. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995).

The parental rights of a parent in his child are not to be bartered away at the parent's whim. Foy v. Foy, 57 N.C. App. 128, 290 S.E.2d 748 (1982).

When the interests of the child and parents conflict, the best interests of the child control. In re Tate, 67 N.C. App. 89, 312 S.E.2d 535 (1984).

The legislature expressed its intent that the best interests of the child are controlling by recognizing the necessity for any child to have a permanent plan of care at the earliest possible age, and by providing that action which is in the best interests of the child should be taken in all cases where the interests of the child and those of his or her parents or other persons are in conflict. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985).

Right to Object to Immunizations - Even though their parental rights had not been formally terminated, parents lost the right to object to their children's immunization, on religious grounds, where they lost custody of the children due to neglect, including the failure to provide the children with adequate shelter, clothing, food, medical care, and a formal education. In re Stratton, 153 N.C. App. 428, 571 S.E.2d 234, review denied, 356 N.C. 436, 573 S.E.2d 512 (2002).

Best Interests of Child May Require That Family Not Be Dissolved. - The legislature has properly recognized that in certain situations, where the grounds for termination could be legally established, the best interests of the child, considering the intangibles, indicate that the family unit should not be dissolved. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Where there is a reasonable hope that the family unit, within a reasonable period of time, can reunite and provide for the emotional and physical welfare of the child, the trial court is given discretion not to terminate rights. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Discontinuance of Visitation Rights Following Affirmation of Termination. - The trial court did not err in entering an order discontinuing respondents' visitation rights, which order had allowed respondents to visit their children pending appeal of termination proceeding, after the North Carolina Supreme Court affirmed the termination, as the best interests of the children required that a permanent home be found for them, i.e., that steps be taken leading to their adoption. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985).

Right to Counsel. - It cannot be said that the Constitution requires the appointment of counsel in every parental termination proceeding; therefore 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, of course, 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).

Mother who was facing termination of parental rights had the right to be represented by counsel; the trial court erred when it denied the mother's request for court-appointed counsel, even though the mother (1) had not answered a petition that the department of social services filed, (2) did not attend a pretrial conference that the trial court scheduled, and (3) made her request for counsel on the day the case was set for a hearing. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), cert. denied, 359 N.C. 632, 616 S.E.2d 230 (2005).

Guardian Ad Litem Requirement. - Although the mother's parental rights were not terminated for dependency under G.S. 7B-1111(a)(6), the trial court erred in failing to appoint the mother a guardian ad litem under former G.S. 7B-1101; the guardian ad litem requirement was triggered because the mother's mental health issues, involving, in part, bipolar disorder, were central to the termination. 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).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re A.J.M.P., 205 N.C. App. 144, 695 S.E.2d 156 (2010).

Cited in In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001); In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 237 (2002); In re A.C.F., 176 N.C. App. 520, 626 S.E.2d 729 (2006); In re R.R., 180 N.C. App. 628, 638 S.E.2d 502 (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 M.D., 200 N.C. App. 35, 682 S.E.2d 780 (2009).


§ 7B-1101. Jurisdiction.

The court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion. The court shall have jurisdiction to terminate the parental rights of any parent irrespective of the age of the parent. Provided, that before exercising jurisdiction under this Article, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204. The court shall have jurisdiction to terminate the parental rights of any parent irrespective of the state of residence of the parent. Provided, that before exercising jurisdiction under this Article regarding the parental rights of a nonresident parent, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201 or G.S. 50A-203, without regard to G.S. 50A-204 and that process was served on the nonresident parent pursuant to G.S. 7B-1106. Provided, further, that the clerk of superior court shall have jurisdiction for adoptions under Chapter 48 of the General Statutes.

History

(1977, c. 879, s. 8; 1979, c. 110, s. 7; 1979, 2nd Sess., c. 1206, s. 1; 1981, c. 996, s. 1; 1983, c. 89, s. 1; 1995, c. 457, s. 3; 1998-202, s. 6; 1999-223, s. 6; 1999-456, s. 60; 2000-144, s. 18; 2000-183, s. 2; 2003-140, s. 4; 2005-398, s. 14; 2007-152, s. 1.)

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

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 survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

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.

State's jurisdiction is governed by both the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, and trial court's jurisdiction in a termination of parental rights case must be compatible with both of these acts. In re Bean, 132 N.C. App. 363, 511 S.E.2d 683 (1999).

Effect on Chapter 50A. - While a determination of jurisdiction over child custody matters will precede a determination of jurisdiction over parental rights, it does not supplant the parental rights proceedings; the language of G.S. 7A-289.22(4) is that it shall not be "used to circumvent" Chapter 50A, G.S. 50A-1, et seq., not that it shall be "in conformity with" Chapter 50A. In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73 (1985).

Guardian Ad Litem Requirement - Where the allegations contained in a petition or motion to terminate parental rights tend to show that the respondent is incapable of properly caring for his or her child because of mental illness, the trial court is required to appoint a guardian ad litem to represent the respondent at the termination hearing pursuant to this section and G.S. 7B-1111(6). 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).

When a Division of Social Services pursues termination on the grounds of parental incapability under G.S. 7B-1111(a)(6), the parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right. A guardian ad litem shall also be appointed. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

Although a trial court found, inter alia, that a mother suffered from significant mental health issues, it terminated her parental rights pursuant to G.S. 7B-1111(a)(1) because she had neglected her daughter; however, because the mother's mental instability was so intertwined with a child's neglect, the trial court erred in failing to appoint a guardian ad litem for the mother pursuant to G.S. 7B-1101 at a parental rights termination hearing. In re J.D., 164 N.C. App. 176, 605 S.E.2d 643 (2004), cert. denied, 358 N.C. 732, 601 S.E.2d 531 (2004).

Mother was entitled to a guardian ad litem where the petition to terminate her parental rights alleged that depression and personality and emotional problems rendered her unable to parent her child; because the trial failed to appoint a guardian ad litem for the mother, the termination order was reversed and the case was remanded. In re S.B., 166 N.C. App. 494, 602 S.E.2d 694 (2004).

Order terminating the parental rights of both parents to four minor children was reversed on appeal, because the trial court erred by failing to appoint a guardian ad litem for the parents, who had significant mental health issues that bore directly on their ability to provide proper care and supervision of their children. In re B.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005).

Trial court did not err by not appointing a guardian ad litem for the mother for a termination of parental rights hearing as it was not alleged, pursuant to G.S. 7B-1111(a)(6), that the mother was incapable of properly caring for her children; additionally, whether the trial court should have appointed a guardian ad litem for the mother in a prior dependency proceeding was not an issue before the court on the appeal of the termination of the mother's parental rights. 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).

Trial court erred when it failed to appoint a guardian ad litem for mother pursuant to prior language of G.S. 7B-1101 after reviewing her psychological evaluation, but still considered her mental illness, even though it never mentioned G.S. 7B-1111(a)(6) as a factor in terminating her parental rights. Accordingly, the mother was entitled to a new termination hearing and the appointment of a guardian ad litem. In re T.W., 173 N.C. App. 153, 617 S.E.2d 702 (2005).

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).

While the termination of a mother's parental rights was based on G.S. 7B-1111(a)(1), (7), the original petition alleged grounds for termination pursuant to G.S. 7B-1111(a)(6), and the trial court considered the mother's substance abuse and mental illness in making that determination; therefore, G.S. 7B-1101 required appointment of a guardian ad litem for the mother, and the failure of the trial court to do so was error. In re K.R.S., 170 N.C. App. 643, 613 S.E.2d 318 (2005).

Failure to Appoint Guardian Ad Litem Required Reversal of Termination Order. - Order terminating a father's parental rights, which was entered under G.S. 7B-1111(a)(6) on the basis of the father's 20-year history of substance abuse, was reversed; the trial court failed to appoint a guardian ad litem to represent the father's interests as required by G.S. 7B-1101(1), and regardless of whether that failure prejudiced the father, remand was required for appointment of a guardian ad litem and for rehearing. In re S.B., 166 N.C. App. 488, 602 S.E.2d 691 (2004).

The proper time for appointing a guardian ad litem under G.S. 7B-1101, where grounds for termination are based on G.S. 7B-1111(a)(6), is upon the filing of the petition. In re D.S.C., 168 N.C. App. 168, 607 S.E.2d 43 (2005).

Mother Was Not Entitled to Appointment of Guardian Ad Litem. - 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).

In termination of parental rights action, the trial court was not required to appoint a guardian ad litem for the mother under G.S. 7B-1101, because the termination did not allege dependency. In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006).

Trial court terminated a mother's parental rights based on: (1) neglect; (2) wilfully leaving the children in foster care for more than 12 months without showing reasonable progress; (3) wilfully failing to provide financial support to the children; and (4) abandonment of the children for at least six months immediately preceding the filing of the petition for termination of parental rights; the mother did not request that a guardian ad litem (GAL) be appointed. Also, the petition for termination of her parental rights did not allege the mother's incapability to parent the children, and no allegations were asserted, and no showing was made that the mother was incompetent; thus, the trial court was not required to appoint a GAL to the mother under either G.S. 7B-1101 and 35A-1101, or G.S. 1A-1-17 . In re D.H., 177 N.C. App. 700, 629 S.E.2d 920 (2006).

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).

Trial court erred in failing to appoint a guardian ad litem for a mother in an action to terminate her parental rights; under the version of G.S. 7B-1101 in effect when the petition was filed, a guardian was required where it was alleged that the mother was physically disabled pursuant to G.S. 7B-1111(a)(6). In re D.S.C., 168 N.C. App. 168, 607 S.E.2d 43 (2005).

Failure to Appoint Guardian Ad Litem Is Not Reversible Error. - Where multiple grounds are alleged for termination of parental rights, including an allegation under G.S. 7B-1111(6) that the parent is unable to provide for the care of the child, where that allegation is not pursued, and where valid findings support termination on other statutory grounds, it is not reversible error for a trial court to fail to appoint a guardian ad litem for the parent, as required by G.S. 7B-1101(1). In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003).

Failure to Appoint Counsel Not Error. - In an action to terminate the mother's parental rights, the trial court's failure to appoint the mother a guardian ad litem did not amount to reversible error. There were no circumstances of the type that, of brought to the judge's attention, would have raised a substantial question regarding the mother's competency. In re S.N.H., 177 N.C. App. 82, 627 S.E.2d 510 (2006).

Trial court's failure to appoint counsel for the father was not error where the father failed to contact the clerk as specifically required and stated on the summons. In re R.R., 180 N.C. App. 628, 638 S.E.2d 502 (2006).

Right to Effective Assistance of Counsel. - If no remedy is provided for inadequate representation, the statutory right to counsel will become an empty formality, therefore, the right to counsel provided by this section includes the right to effective assistance of counsel. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676 (1989).

Where lack of preparation for proceedings to terminate mother's parental rights was due to respondent's unexcused unavailability, the trial court did not err in denying her counsel's motion to continue or withdraw, and there was no denial of effective assistance of counsel. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676 (1989).

The right to counsel provided by this section includes the right to effective assistance of counsel. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996).

A claim of ineffective assistance of counsel requires the respondent to show that counsel's performance was so serious as to deprive the represented party of a fair hearing. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996).

Mother who was facing termination of parental rights had the right to be represented by counsel; the trial court erred when it denied the mother's request for court-appointed counsel, even though the mother (1) had not answered a petition that the department of social services filed, (2) did not attend a pretrial conference that the trial court scheduled, and (3) made her request for counsel on the day the case was set for a hearing. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), cert. denied, 359 N.C. 632, 616 S.E.2d 230 (2005).

Failure not to remove counsel was not an error - In a termination of parental rights proceeding where the father was alleged to have abused and neglected the children, the trial court did not err in not removing the father's attorney from the case on the basis that counsel failed to schedule a new hearing in the abuse and neglect hearing, as the father did not show prejudice arising from there being no rehearing in the abuse and neglect proceeding prior to the termination hearing. In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65 (2002).

Residing or Found in District. - Where mother left with child for Ohio four days before the petition was filed, the child was not "residing in" or "found in" the district "at the time of filing" and therefore the petition failed for lack of subject matter jurisdiction. In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73 (1985).

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 G.S. 7B-200(a)(4) and 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).

Service Upon Child. - Since the failure of a summons to comply with G.S. 7B-1106(a)(5) implicated the trial court's jurisdiction over the children, not over the termination of parental rights action as a whole, pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(h)(1), a general appearance by the children's guardian ad litem and attorney advocate waived any objection to the jurisdictional requirements of G.S. 7B-1101. In re J.T., 363 N.C. 1, 672 S.E.2d 17 (2009).

The district court had jurisdiction over the subject matter of petition filed, signed and verified by county division of social services, which alleged that child had been placed with DSS by its mother; that the putative father was unknown; that North Carolina was the home state of the child and no other state had jurisdiction over the child; and that the best interest of the child would be served if the court assumed jurisdiction over him. 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).

District court in New Hanover County had jurisdiction over the father's petition to terminate the mother's parental rights despite the fact that Wake County still maintained jurisdiction over the child custody proceeding because the New Hanover County court found the child to be neglected. In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003).

When a child was undisputedly present in the county over which a district court had jurisdiction when a petition to terminate the parental rights of the child's father was filed in that court, and the father did not seek a change of venue after the petition was filed, waiving any defect in venue under G.S. 1A-1, N.C. R. Civ. P. 12(b), the district court properly heard the petition. 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).

Trial court had subject matter jurisdiction to enter an order terminating the father's parental rights even though the child and the child's custodial guardians resided in Alabama because no determination was made that the child's parents did not reside in North Carolina. 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).

Trial court had subject matter jurisdiction to terminate a father's parental rights because North Carolina was the child's home State since she lived there with the mother, and Virginia no longer possessed exclusive, continuing subject matter jurisdiction; neither the father, the mother, nor the child actually resided in Virginia at the time of the filing of the motion to terminate the father's parental rights. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905 (2015).

Court Had Jurisdiction. - There is no authority that compels dismissal of an action solely because petitioner fails to include the G.S. 7B-1104(7) statement of fact in a termination petition. In re J.D.S., 170 N.C. App. 244, 612 S.E.2d 350 (2005), cert. denied, - U.S. - , 360 N.C. 64, 623 S.E.2d 584 (2005).

While the original summons was not yet dormant, because the second summons did not conform with the requirements of N.C. R. Civ. P. 4(d), the original action was discontinued, and the trial court's subject matter jurisdiction was reinvoked. Because the parents were properly served with newly issued summons, commencing new actions and reinvoking the trial court's subject matter jurisdiction as of their respective dates of issuance, the contention that the court lacked subject matter jurisdiction over the parties in the termination of parental rights hearing due to ineffective service was without merit. 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).

Neither before nor after the trial court's entry of the nonsecure custody orders had there been any custody proceedings instituted or custody orders entered in any state other than North Carolina, and the child had lived in the State with his foster parents since September 2011, and thus North Carolina became the child's home state such that the trial court possessed jurisdiction to terminate the mother's parental rights. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49 (2014).

Trial court had exclusive, original jurisdiction over the termination of a parental rights case regarding a child pursuant to the statute and the Uniform Child-Custody Jurisdiction and Enforcement Act because the child resided in, was found in, or was in the legal or actual custody of a county department of social services at the time of filing of the petition, North Carolina was her home state, and process was served on the mother. In re N.P., - N.C. - , - S.E.2d - (Mar. 12, 2021).

Trial court properly exercised subject matter jurisdiction because regardless of any temporary emergency jurisdiction exercised during the initial period of the child's life or during the time leading up to her adjudication as a dependent and neglected juvenile, it had exclusive, original jurisdiction over all petitions and motions concerning termination of parental rights pursuant to the statute and in conformance with the Uniform Child-Custody Jurisdiction and Enforcement Act. In re N.P., - N.C. - , - S.E.2d - (Mar. 12, 2021).

Statute properly focuses the question of subject matter jurisdiction on the custody, location, or residence of the subject child in a termination of parental rights proceeding rather than on the residential state of the parents. In re N.P., - N.C. - , - S.E.2d - (Mar. 12, 2021).

Continuing Jurisdiction. - Once jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined. 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).

Refusal to Assert Jurisdiction. - Although child resided in North Carolina, the court properly declined jurisdiction where the father continued to reside in the state of the court of original jurisdiction; thus, the Florida court retained jurisdiction under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. In re Bean, 132 N.C. App. 363, 511 S.E.2d 683 (1999).

Jurisdiction Lacking Under the North Carolina Uniform Child-Custody Jurisdiction and Enforcement Act. - Although the general requirement for jurisdiction was satisfied as the children who were the subject of a petition to terminate their mother's parental rights resided in North Carolina when the petition was filed, the trial court's order denying the mother's motion to dismiss was vacated as the trial court lacked subject matter jurisdiction under the North Carolina Uniform Child-Custody Jurisdiction and Enforcement Act. In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147 (2004).

District court erred in terminating a father's parental rights because it never acquired subject matter jurisdiction; without an order from the New Jersey court relieving itself of jurisdiction, the district court lacked any basis to conclude it acquired subject matter jurisdiction over the case. In re T.E.N., 252 N.C. App. 461, 798 S.E.2d 792 (2017).

Jurisdiction During Pendency of Custody Review Order Appeal. - Where the trial court terminated the mother's parental rights during the pendency of the mother's custody review order appeal, G.S. 1-294 did not deprive the trial court of jurisdiction to terminate the mother's parental rights, as such jurisdiction was granted under G.S. 7B-1101 and G.S. 7B-1103. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Jurisdiction During Pendency of Appeal of Permanency Planning Order. - After a mother filed a notice of appeal of a permanency planning order under G.S. 7B-1003(b), the trial court no longer had jurisdiction to rule on the petitions to terminate her parental rights under G.S. 7B-1101; consequently, the order terminating the mother's parental rights was void ab initio, and did not render moot the appeal of the permanency planning order. In re Z.J.T.B., 183 N.C. App. 380, 645 S.E.2d 206 (2007).

Subject Matter Jurisdiction Absent. - North Carolina trial court lacked subject matter jurisdiction over a termination of parental rights proceeding because a prior custody order was entered in a court in New Jersey. In re J.A.P., 218 N.C. App. 190, 721 S.E.2d 253 (2012).

Trial court lacked subject matter jurisdiction to grant a mother's petition to terminate respondent's parental rights pursuant; the trial court erred in concluding that an Indiana court relinquished jurisdiction to North Carolina's courts by entering an order in the Indiana Action dismissing the paternal grandparents' motion for visitation rights. In re J.D., 234 N.C. App. 342, 759 S.E.2d 375 (2014).

County court did not have subject matter jurisdiction over the petition for termination of the father's parental rights because the very first allegation in the petitions to terminate parental rights was that the children were citizens and residents of Washington State, which alone established the lack of subject matter jurisdiction for termination of parental rights; both children had resided in Washington state with the mother since 2007; they did not reside in and were not found in Alexander County, North Carolina, when the petition was filed on October 17, 2011; and the children had never been in the legal or actual custody of the county department of social services or any child-placing agency. In re M.C., 244 N.C. App. 410, 781 S.E.2d 70 (2015).

Jurisdiction Absent Where Petition Was Insufficient. - Where a termination of rights petition did not address guardianship issues raised by the noncustodial parent respondent, where no custody order was attached, and where the trial court merely announced that it had decided the claimed guardianship was void, without further explanation, it was impossible to review the trial court's decision and the appeals court was forced to hold that the trial court had lacked subject matter jurisdiction due to the facial defects of the petition. In re Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298 (2005).

Because the petition for termination of parental rights was not accompanied by a copy of the custody order then in effect, the petition failed to confer subject matter jurisdiction on the trial court; that omission need not have been fatal if the Vance County Department of Social Services (DSS) had simply amended the petition by attaching the proper custody order or otherwise ensured the custody order was made a part of the record before the trial court. Thus, it was the failure by the DSS either to attach the custody order to the petition or to remedy that omission that ultimately deprived the trial court of subject matter jurisdiction. In re T.B., 177 N.C. App. 790, 629 S.E.2d 895 (2006).

Where a petition to terminate parental rights was captioned with the names of both children, but the summons that was issued referenced only the younger child, the trial court lacked subject matter jurisdiction to terminate the mother's parental rights in the older child because a summons pertaining to the child was not issued. In re C.T., 182 N.C. App. 472, 643 S.E.2d 23 (2007).

Court Erred in Terminating Parental Rights Because It Lacked Subject Matter Jurisdiction. - District court erred in terminating a mother's parental rights because it lacked subject matter jurisdiction to modify a California court's child-custody determination inasmuch as the California court did not determine that it no longer had exclusive, continuing jurisdiction, neither court made a finding that the mother did not presently reside in California, and the California court had not terminated its jurisdiction. In re D.A.Y., - N.C. App. - , 831 S.E.2d 854 (2019).

Waiver of Counsel by Inaction Not Allowed. - The General Assembly did not intend to allow for waiver of court appointed counsel due to inaction prior to the hearing. If a parent is present at the hearing and does not waive representation, counsel shall be appointed. Little v. Little, 127 N.C. App. 191, 487 S.E.2d 823 (1997).

Ruling by the trial court that parents right to counsel was waived by inaction prior to the termination hearing was prejudicial error. Little v. Little, 127 N.C. App. 191, 487 S.E.2d 823 (1997).

Appointment of Counsel for Indigent Parents in Proceedings Brought Prior to August 9, 1981. - In proceedings to terminate parental rights brought prior to August 9, 1981, the effective date of the 1981 amendment to this section, relating to appointment of counsel for indigent parents, where other circumstances do not dictate to the contrary an indigent parent is not entitled to appointment of counsel as a matter of law; rather, the right to appointed counsel must be determined on a case by case basis. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981).

Payment of Fees of Counsel Appointed in Proceedings Brought Prior to August 9, 1981. - Attorneys' fees allowed by the court for attorneys appointed in proceedings to terminate parental rights, whether as separate counsel or as guardian ad litem, brought before August 9, 1981, the effective date of the 1981 amendment to this section, shall be borne by the Administrative Office of the Courts. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981).

Jurisdiction Absent Where the Department of Social Services Did Not Have Custody at the Time the Petition Was Filed. - Since the trial court lacked jurisdiction as the children were not in the custody of the Department of Social Services at the time the petition to terminate the mother's parental rights was filed and the children were not residing in North Carolina pursuant to G.S. 7B-1101, the trial court's order terminating the mother's parental rights was vacated. In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808 (2006).

Waiver of Insufficient Process by Making General Appearance. - Since the failure of a summons to comply with G.S. 7B-1106(a)(5) implicated the trial court's jurisdiction over the children, not over the termination of parental rights action as a whole, pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(h)(1), a general appearance by the children's guardian ad litem and attorney advocate waived any objection to the jurisdictional requirements of G.S. 7B-1101. In re J.T., 363 N.C. 1, 672 S.E.2d 17 (2009).

Cited in In re J.G.B., 177 N.C. App. 375, 628 S.E.2d 450 (2006); In re A.F.H-G, 189 N.C. App. 160, 657 S.E.2d 738 (2008); In re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485 (2009); In re N.E.L., 202 N.C. App. 576, 688 S.E.2d 803 (2010); In re K.U., 208 N.C. App. 128, 702 S.E.2d 103 (2010); In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012); In re Baby Boy, 238 N.C. App. 316, 767 S.E.2d 628 (2014).


§ 7B-1101.1. Parent's right to counsel; guardian ad litem.

  1. The parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right. The fees of appointed counsel shall be borne by the Office of Indigent Defense Services. When a petition is filed, unless the parent is already represented by counsel, the clerk shall appoint provisional counsel for each respondent parent named in the petition in accordance with rules adopted by the Office of Indigent Defense Services, shall indicate the appointment on the juvenile summons, and shall provide a copy of the summons and petition to the attorney. At the first hearing after service upon the respondent parent, the court shall dismiss the provisional counsel if the respondent parent:
    1. Does not appear at the hearing;
    2. Does not qualify for court-appointed counsel;
    3. Has retained counsel; or
    4. Waives the right to counsel.
  2. 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. This examination shall be reported as provided in G.S. 7B-806.
  3. In addition to the right to appointed counsel under subsection (a) of this section, a guardian ad litem shall be appointed in accordance with G.S. 1A-1, Rule 17, to represent any parent who is under the age of 18 years and who is not married or otherwise emancipated.
  4. 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.
  5. 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.
  6. Repealed by Session Laws 2013-129, s. 32, effective October 1, 2013, and applicable to actions filed or pending on or after that date.
  7. The fees of a guardian ad litem appointed pursuant to this section shall be borne by the Office of Indigent Defense Services when the court finds that the respondent is indigent. In other cases, the fees of the court-appointed guardian ad litem shall be a proper charge against the respondent if the respondent does not secure private legal counsel.

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

(2005-398, s. 15; 2009-311, s. 9; 2011-326, s. 12(b); 2012-194, s. 41; 2013-129, s. 32; 2021-100, s. 17.)

Editor's Note. - Session Laws 2005-398, s. 19, made this section effective October 1, 2005, and applicable to petitions or actions filed on or after that date.

Session Laws 2011-326, s. 12(b), effective June 27, 2011, provided that "G.S. 7B-1110.1(a) reads as rewritten" when in fact the text that was set out in the act matched that of G.S. 7B-1101.1(a). Session Laws 2012-194, s. 41, effective July 17, 2012, amended the introductory language of Session Laws 2011-326, s. 12(b) by substituting "G.S. 7B-1101.1(a)" for "G.S. 7B-1110.1(a)." The result was to give effect to the amendment of subsection (a) of this section by Session Laws 2011-326, s. 12(b).

Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 32, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2009-311, s. 9, effective October 1, 2009, rewrote subsection (a); and inserted "in accordance with G.S. 1A-1, Rule 17" in the first sentence of subsection (c).

Session Laws 2011-326, s. 12(b), as amended by Session Laws 2012-194, s. 41, effective July 17, 2012, substituted "respondent parent named in the petition in accordance with rules adopted by the Office of Indigent Defense Services and shall indicate" for "respondent parent named in the petition and indicate" in the third sentence of subsection (a).

Session Laws 2013-129, s. 32, 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 have 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"; and deleted subsection (e). For applicability, see editor's note.

Session Laws 2021-100, s. 17, effective October 1, 2021, in subsection (a), inserted ", and shall provide a copy of the summons and petition to the attorney” and made a stylistic change.

CASE NOTES

Revised Statute. - Although prior versions of the statute also provided for the appointment of an assistive guardian ad litem for a parent who suffers from diminished capacity, the N.C. General Assembly eliminated that provision when it revised the statute. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116 (2014), review denied 767 S.E.2d 840, 2015 N.C. LEXIS 44 (2015).

Appointment of Guardian Ad Litem. - G.S. 7B-1101.1 requires that a guardian ad litem be appointed in accordance with the provisions of G.S. 1A-1, N.C. R. Civ. P. 17 to represent a parent, meaning that where an allegation is made that parental rights should be terminated, a trial court is required to conduct a hearing to determine whether a guardian ad litem should be appointed to represent the parent, and an allegation under G.S. 7B-1111(a)(6) serves as a triggering mechanism, alerting the trial court that it should conduct a hearing to determine whether a guardian ad litem should be appointed; at the hearing, the trial court must determine whether the parents are incompetent within the meaning of G.S. 35A-1101, such that the individual would be unable to aid in their defense at the termination of parental rights proceeding, and the trial court should always keep in mind that the appointment of a guardian ad litem will divest the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005).

Trial court complied with the statutory mandate in G.S. 7B-1101.1(c) and did not err in failing to timely appoint a mother a guardian ad litem in a termination of parental rights proceeding because the trial court appointed a guardian ad litem for the mother seventeen days after the petition for termination was filed and more than three months before the first hearing in the termination proceeding took place; G.S. 7B-1101.1(c) only mandates timely appointment of a guardian ad litem during a termination of parental rights proceeding. In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008), review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).

Trial court did not abuse its discretion by appointing a guardian ad litem for the mother in an assistance-only capacity under because the proposed guardian ad litem specifically testified that the mother was reasonable, smart, and understood the proceedings, and the mother told the trial court that she graduated from high school, paid her bills, managed her daily affairs, and was capable of making her own decisions. In re A.R., 238 N.C. App. 302, 767 S.E.2d 427 (2014).

Discretion of Trial Court. - Statute vests discretion in the trial court, which may hold a hearing on appointing a guardian ad litem only for a parent who is incompetent, and the record established that the severity of the mother's mental health problems was well known to the trial court, but they did not rise to the level of incompetency, and the record contained facts in keeping with a finding of competency, including in part that she attended a vocational rehabilitation program, plus her denial of disability benefits was some evidence to support a finding of competency; the trial court did not err in not inquiring into her competency before holding a hearing to terminate her rights. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116 (2014), review denied 767 S.E.2d 840, 2015 N.C. LEXIS 44 (2015).

Hearing Required To Determine Reasonable Basis For Believing Parent Incompetent Or Has Diminished Capacity. - Trial court acting under G.S. 7B-1101.1(c), must conduct a hearing in accordance with the procedures required under G.S. 1A-1, N.C. R. Civ. P. 17, in order to determine whether there is a reasonable basis for believing that a parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest; if the court chooses to exercise its discretion to appoint a guardian ad litem under G.S. 7B-1101.1(c), then the trial court must specify the prong under which it is proceeding, including findings of fact supporting its decision, and specify the role that the guardian ad litem should play, whether one of substitution or assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152 (2012).

Role of the guardian ad litem should be determined based on whether the trial court determines that the parent is incompetent or whether the trial court determines that the parent has diminished capacity and cannot adequately act in his or her own interest G.S. 1A-1, N.C. R. Civ. P. 17(e), which addresses the duties of a guardian ad litem for an incompetent person, should apply if the parent is incompetent, the role of the guardian ad litem should be one of substitution; on the other hand, if the parent has diminished capacity, G.S. 7B-1101.1(e) should apply and the role of the guardian ad litem should be one of assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152 (2012).

Both G.S. 7B-1101.1(e) and G.S. 1A-1, N.C. R. Civ. P. 17(e) can be given effect by focusing on the two separate prongs of G.S. 7B-1101.1(c), with one authorizing appointment of a guardian ad litem if the parent is incompetent, while the second authorizing appointment of a guardian ad litem if the parent has diminished capacity; the extent of the parent's disability logically informs the role a guardian ad litem needs to play for the parent in a termination of parental rights proceeding. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152 (2012).

Incompetent Or Has Diminished Capacity. - Trial court erred in terminating a mother's parental rights because she had a substance abuse history and was schizophrenic, the allegations against her partly revolved around her multiple, serious mental health conditions, her mental illness was one of the facts that led to her child's removal, and the trial court failed to conduct an inquiry into whether it was necessary to appoint her a guardian ad litem. In re T.L.H., 237 N.C. App. 239, 765 S.E.2d 88 (2014).

Appointment of Guardian Ad Litem Not Required. - 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), there was no requirement that a guardian ad litem be appointed for the parent, even though the petition made reference to the mother's drug abuse and mental illness, because there was no allegation under G.S. 7B-1111(a)(6) that the mother was incapable of caring for her children, she did not seek a guardian ad litem, and the trial court properly inquired into her competency, under G.S. 1A-1, N.C. R. Civ. P. 17. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005).

It was not an abuse of discretion for the trial court to fail to inquire as to a mother's competency as: (1) the mother testified at the disposition hearing and the adjudication hearing about her employment; (2) the mention of the mother's emotional imbalance and a psychiatric evaluation, which found her to have a flare for dramatic behavior, to be easily excited, to be prone to emotional outbursts, to be overly sensitive to the opinions of others, and to be impulsive and rebellious, did not constitute a diagnosis of a mental health issue; (3) as the mother had made threats to harm the child, it was prudent to require a psychological evaluation before visitation resumed; and (4) doubting the mother's ability to parent the child did not necessarily indicate that the mother was incapable of handling her affairs for G.S. 7B-1101.1(c) and G.S. 35A-1101 purposes. In re A.R.D., 204 N.C. App. 500, 694 S.E.2d 508, aff'd., 364 N.C. 596, 704 S.E.2d 510, 2010 N.C. LEXIS 1075 (2010).

Guardian Ad Litem's Role Limited to One of Assistance, Not One of Substitution. - Pursuant to G.S. 7B-1101.1(e), the guardian ad litem's role was limited to one of assistance, not one of substitution; therefore, the guardian ad litem did not have the authority to sign the notice of appeal in place of the parents challenging the termination of their parental rights. In re L.B., 187 N.C. App. 326, 653 S.E.2d 240 (2007), aff'd, 362 N.C. 507, 666 S.E.2d 751 (2008).

Removal of Guardian ad Litem. - Given the statutory changes, respondent's assistive guardian ad litem (GAL)would have been removed by operation of law, and nothing indicated that substantial questions had arisen regarding respondent's competency sufficient to qualify her for a substitutive GAL when she had previously not qualified. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116 (2014), review denied 767 S.E.2d 840, 2015 N.C. LEXIS 44 (2015).

In a termination of parental rights action, the trial court erred by failing to determine whether the mother was in need of a guardian ad litem pursuant to G.S. 7B-1101.1. The trial court should have inquired into the mother's competency pursuant to G.S. 1A-1, N.C. R. Civ. P. 17, given the allegations made by the Department of Social Services that the mother had problems controlling the mother's anger, tended to be aggressive towards others, and lacked an understanding of the mother's prior neglect of the minor children. In re N.A.L., 193 N.C. App. 114, 666 S.E.2d 768 (2008).

Withdrawal of Counsel. - Order terminating a mother's parental rights was vacated because he district court erred in allowing her counsel to withdraw her representation without first confirming that she had been notified of counsel's intention to do so; the record was devoid of any evidence whatsoever that the mother received any notice from her trial counsel that counsel would seek to withdraw from her representation at the start of the termination of parental rights hearing. In re M.G., 239 N.C. App. 77, 767 S.E.2d 436 (2015).

Because a mother was already represented by counsel, she had no need for provisional counsel, counsel did not assume a provisional role in the proceeding, and the district court was not excused from the necessity for compliance with the usual procedures required prior to the entry of an order allowing counsel to withdraw by virtue of the provisions of subsection (a)(1). In re M.G., 239 N.C. App. 77, 767 S.E.2d 436 (2015).

Error in Permitting Counsel to Withdraw Without Notice to Parent. - Trial court erred by excusing the father's trial counsel from attending and participating in the termination of parental rights hearing when counsel failed to notify the father of his intention to withdraw and the trial court did not continue the termination hearing to ensure the father was represented by counsel. In re D.E.G., 228 N.C. App. 381, 747 S.E.2d 280 (2013).

Waiver of Right to Counsel. - In a parental rights termination case, the trial court did not err in allowing a child's mother to waive her right to counsel pursuant to G.S. 7B-1101.1 and represent herself at the termination hearing, where the mother confirmed that she wanted to represent herself and the mother read and signed the waiver of counsel form, which expressly stated that she did not want the assistance of a lawyer. In re J.K.P., 238 N.C. App. 334, 767 S.E.2d 119 (2014).

No Right to Appeal Found. - Respondent claimed that the order entered on her assistive guardian ad litem's motion to withdraw was fatally deficient because it does not make adequate findings or conclusions, but respondent had no right to appeal this order, and even if she did, it would have been lost due to her failure to provide timely written notice of her intent to exercise that right. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116 (2014), review denied 767 S.E.2d 840, 2015 N.C. LEXIS 44 (2015).

Ineffective Assistance of Counsel. - Father was entitled to a new hearing on the termination of his parental rights because he was denied effective assistance of counsel; the father's counsel did not make sufficient efforts to communicate with him in order to provide him with effective representation, and that failure deprived the father of a fair hearing. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905 (2015).

In a termination of parental rights case, the record on appeal contained insufficient information to allow the appellate court to review the mother's ineffective assistance of counsel claim because it was silent on the reasons why counsel did not object during the testimony of the witnesses for the Department of Health and Human Services, did not cross-examine those witnesses, and did not present any evidence; the record did not compel a conclusion that the mother did not cooperate with her counsel and waived her right to representation or undermined her counsel's ability to advocate for her; and the appellate court declined to speculate about what counsel could have argued or how it would have affected the outcome. In re C.D.H., - N.C. App. - , 829 S.E.2d 690 (2019).

Father failed to show that any of the alleged deficiencies in his counsel's performance or conduct would have resulted in a different outcome, and thus father could not prevail on his claim of ineffective assistance of counsel. In re G.G.M., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Applied in 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).

Cited in In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); In re K.N., 181 N.C. App. 736, 640 S.E.2d 813 (2007); In re K.J.L., 206 N.C. App. 530, 698 S.E.2d 150 (2010); In re S.R., 207 N.C. App. 102, 698 S.E.2d 535 (2010), review denied, 705 S.E.2d 371, 2010 N.C. LEXIS 1015 (2010); In re A.S.Y., 208 N.C. App. 530, 703 S.E.2d 797 (2010); In re P.D.R., 365 N.C. 533, 723 S.E.2d 335 (2012); 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); In re P.A., 241 N.C. App. 53, 772 S.E.2d 240 (2015); In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).


§ 7B-1102. Pending child abuse, neglect, or dependency proceedings.

  1. When the district court is exercising jurisdiction over a juvenile and the juvenile's parent in an abuse, neglect, or dependency proceeding, a person or agency specified in G.S. 7B-1103(a) may file in that proceeding a motion for termination of the parent's rights in relation to the juvenile.
  2. A motion pursuant to subsection (a) of this section and the notice required by G.S. 7B-1106.1 shall be served in accordance with G.S. 1A-1, Rule 5(b), except:
    1. Service must be in accordance with G.S. 1A-1, Rule 4, if one of the following applies:
      1. The person or agency to be served was not served originally with summons.
      2. The person or agency to be served was served originally by publication that did not include notice substantially in conformity with the notice required by G.S. 7B-406(b)(4)e.
      3. Two years has elapsed since the date of the original action.
    2. In any case, the court may order that service of the motion and notice be made pursuant to G.S. 1A-1, Rule 4.
  3. If a parent who is served under G.S. 1A-1, Rule 4, with a motion under this section has an attorney of record, a copy of the motion and the notice served upon the parent shall also be sent to the parent's attorney.
  4. When a petition for termination of parental rights is filed in the same district in which there is pending an abuse, neglect, or dependency proceeding involving the same juvenile, the court on its own motion or motion of a party may consolidate the action pursuant to G.S. 1A-1, Rule 42.

For purposes of this section, the parent of the juvenile shall not be deemed to be under disability even though the parent is a minor.

History

(1998-229, ss. 9.1, 26.1; 1999-456, s. 60; 2000-183, s. 3; 2011-332, s. 4.1.)

Editor's Note. - This section was originally enacted by Session Laws 1998-229, s. 9.1 as 7A-289.23.1 (recodified as 7A-289.23A at the direction of the Revisor of Statutes) and was then amended and recodified by s. 26.1 of that act as 7B-1101.1. It has been renumbered as 7B-1102 at the direction of the Revisor of Statutes.

CASE NOTES

Filing a Petition. - District court re-acquired subject matter jurisdiction over the proceedings because the Department of Social Services (DSS) initiated a new action by issuing a new summons and filing a termination of parental rights petition against the father and the DSS had standing to file the petition under G.S. 7B-1103(a)(4) due to the mother's relinquishment of custody of her daughter to the DSS. In re A.L., 245 N.C. App. 55, 781 S.E.2d 856 (2016).

Rehearing In Abuse And Neglect Proceeding Not Required - In a termination of parental rights proceeding, the father failed to show an error arising from the trial court's failure to hold a rehearing in the abuse and neglect proceeding prior to the case, as such a hearing on abuse and neglect was redundant with parts of the termination hearing, and there was a length of delay resulting from an earlier appeal, the status of the children and the need to determine permanency had changed. In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65 (2002).

Notice Requirement - Trial court erred in terminating the parental rights of parents to their minor children; the notice of the action required by G.S. 7B-1106.1 provided to the parents by an agency failed to meet the statutory requirements for such a notice, the service of the notice was made mandatory by this section and G.S. 1A-1, Rule 5(b), and the agency's failure to provide a proper notice was reversible error. Orange County Dep't of Soc. Servs. v. Alexander (In re Alexander), 158 N.C. App. 522, 581 S.E.2d 466 (2003).

Because G.S. 7B-1102(b) merely directed the Department of Social Services (DSS) to serve the motion and notice pursuant to G.S. 1A-1-4, and nowhere suggested that the DSS had to issue a summons instead of or in addition to those documents. In re D.R.S., 181 N.C. App. 136, 638 S.E.2d 626 (2007).

Because a county agency failed to issue a summons to a minor child or the child's guardian ad litem under G.S. 7B-1106(a)(5), the trial court lacked subject matter jurisdiction over a termination of parental rights proceeding; had the agency filed a motion to terminate under G.S. 7B-1102 in an ongoing juvenile abuse, neglect, and dependency case, the summons would not have been required, and the agency would only have been required to service notice of the motion to terminate on the parties specified in G.S. 7B-1106.1. In re I.D.G., 188 N.C. App. 629, 655 S.E.2d 858 (2008), review dismissed, 363 N.C. 127, 673 S.E.2d 133 (2009).

Applied 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 T.R.M., 208 N.C. App. 160, 702 S.E.2d 108 (2010).

Cited in 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 H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006); In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007); In re C.M.H., 187 N.C. App. 807, 653 S.E.2d 929 (2007); In re A.S.Y., 208 N.C. App. 530, 703 S.E.2d 797 (2010); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).


§ 7B-1103. Who may file a petition or motion.

  1. A petition or motion to terminate the parental rights of either or both parents to his, her, or their minor juvenile may only be filed by one or more of the following:
    1. Either parent seeking termination of the right of the other parent.
    2. Any person who has been judicially appointed as the guardian of the person of the juvenile.
    3. Any county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction.
    4. Any county department of social services, consolidated county human services agency, or licensed child-placing agency to which the juvenile has been surrendered for adoption by one of the parents or by the guardian of the person of the juvenile, pursuant to G.S. 48-3-701.
    5. Any person with whom the juvenile has resided for a continuous period of two years or more next preceding the filing of the petition or motion.
    6. Any guardian ad litem appointed to represent the minor juvenile pursuant to G.S. 7B-601 who has not been relieved of this responsibility.
    7. Any person who has filed a petition for adoption pursuant to Chapter 48 of the General Statutes.
  2. Any person or agency that may file a petition under subsection (a) of this section may intervene in a pending abuse, neglect, or dependency proceeding for the purpose of filing a motion to terminate parental rights.
  3. (See Editor's note) No person whose actions resulted in a conviction under G.S. 14-27.21, 14-27.22, 14-27.23, or 14-27.24 and the conception of the juvenile may file a petition to terminate the parental rights of another with respect to that juvenile.

History

(1977, c. 879, s. 8; 1983, c. 870, s. 1; 1985, c. 758, s. 1; 1987, c. 371, s. 2; 1995 (Reg. Sess., 1996), c. 690, s. 4; 1998-202, s. 6; 1998-229, s. 9.1; 1999-456, s. 60; 2000-183, s. 4; 2004-128, s. 13; 2015-181, s. 23; 2015-264, s. 33(b).)

Editor's Note. - This section was originally enacted as G.S. 7B-1102. It has been renumbered as this section at the direction of the Revisor of Statutes.

Subsection (c), added by Session Laws 2004-128, s. 13, effective December 1, 2004, is applicable to petitions or actions filed on or after that date.

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 2015-264, s. 33(d) made the amendment to this section by Session Laws 2015-264, s. 33(b), which deleted "G.S." two times preceding "14-27.22" and "14-27.24"; and inserted "14-27.23" in subsection (c), 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 2015-181, s. 23, 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 subsection (c).

Session Laws 2015-264, s. 33(b), effective December 1, 2015, deleted "G.S." two times preceding "14-27.22" and "14-27.24"; and inserted "14-27.23" in subsection (c). For applicability, see editor's note.

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 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.

Former G.S. 7A-289.24 (see now this section) limits the persons or agencies who may petition for termination of parental rights. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

Child Residing Continuously With Petitioner. - Child can reside continuously with a person for the purposes of G.S. 7B-1103(a)(5) despite spending a limited number of nights away from that person's home. 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).

Evidence supported the trial court's finding that a child resided continuously with his grandmother for the two-year period immediately preceding the filing of the petition to terminate parental rights. Consequently, the grandmother had standing under G.S. 7B-1103(a)(5) to file the petition. 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).

Proof of Intent to Adopt Not a Prerequisite. - Proof of a petitioner's plan to adopt the child is not a prerequisite for the institution of a proceeding to terminate the parental rights of the child's parents. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Standing to File a Termination Petition. - District court re-acquired subject matter jurisdiction over the proceedings because the Department of Social Services (DSS) initiated a new action by issuing a new summons and filing a termination of parental rights petition against the father and the DSS had standing to file the petition under G.S. 7B-1103 due to the mother's relinquishment of custody of her daughter to the DSS. In re A.L., 245 N.C. App. 55, 781 S.E.2d 856 (2016).

Orders granting the county department of social services (DSS) custody of a child were not void for lack of subject matter jurisdiction, and DSS had standing to file the petition to terminate the mother's parental rights, because the trial court had "home state" jurisdiction to make an initial child-custody determination regarding the child; the child had lived with the mother in North Carolina during the six months immediately preceding the filing of the juvenile petition. In re S.E., - N.C. - , 838 S.E.2d 328 (2020).

Department of Social Services had standing to seek termination of the father's parental rights because the mother had relinquished her own parental rights and transferred legal custody of the child to the agency. In re E.B., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Allegations of Standing by DSS. - Allegations of petition filed by county department of social services, though inartfully drafted, were sufficient to establish that DSS was a party entitled to petition for termination of respondent's parental rights in her children pursuant to G.S. 7A-289.24(3) (see now this section). Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

Agency's Lack of Standing Based on No Longer Having Custody of a Child. - Trial court lacked jurisdiction to enter an order terminating a mother's parental rights, because an agency no longer had custody of the child when it brought the termination action, and therefore lacked standing to bring the action pursuant to G.S. 7B-1103(a)(3). In re Miller, 162 N.C. App. 355, 590 S.E.2d 864 (2004).

Since it was undisputed that the Department of Social Services (DSS) did not have custody of the children on the date upon which the petition was filed and the children were living in South Carolina at the time, at the time of the filing of the DSS petition, DSS lacked standing to petition for termination of parental rights. In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808 (2006).

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).

Agency Had Standing Under Valid Custody Order. - Summons was issued forthwith after the filing of the neglect and dependency petition, and even though the mother was never served with the summons, she made a general appearance in the action before the trial court, thus waiving any defense as to personal jurisdiction. No defect in the trial court's jurisdiction otherwise appearing, the appellate court concluded that the trial court had jurisdiction over the underlying neglect and dependency action and issued a valid custody order to the Department of Social Services (DSS), which gave DSS standing to file the instant petition for termination of parental rights per G.S. 7B-1103(a). In re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485 (2009).

Agency Had Standing Since No Other Court Had Exercised Jurisdiction. - County department of social services had standing to file a termination petition under G.S. 7B-1103(a)(3) since the record established that emergency jurisdiction under G.S. 50A-204 existed at the time the department filed its juvenile petition, as a result, the department had been awarded custody by a court of competent jurisdiction, and those orders remained in effect pursuant to G.S. 50A-204(b) because no other orders had been entered by another state with jurisdiction. In re E.X.J., 191 N.C. App. 34, 662 S.E.2d 24 (2008), aff'd, 363 N.C. 9, 672 S.E.2d 19 (2009).

Substitution of DSS for Director as Petitioner. - Respondents were not entitled to dismissal of petition by reason of the erroneous designation of the director of the county department of social services as petitioner, and could in no way be prejudiced by permitting DSS to ratify the petition and be substituted as petitioner. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

Guardian ad litem had standing to petition for the termination of a mother's parental rights under G.S. 7B-1103(a)(5), and the trial court had jurisdiction over the termination proceedings, where the child had continuously lived with the guardian ad litem for over two years when the petition for termination was filed. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300 (2005).

A guardian ad litem, who did not file or join in the filing of the petition and, thus, was not a party in a termination of parental rights case, did not have to be served with a copy of the notice of appeal by the parent; while a guardian ad litem for a child in a termination of parental rights proceeding may, in some instances, be a petitioner, there is no statutory authority for that guardian ad litem to be a respondent or party. In re Brown, 141 N.C. App. 550, 539 S.E.2d 366 (2000).

Grandmother Proper Person To File Petition - Since the minor child lived with the grandmother for the two years preceding the filing of the motion to terminate the mother's parental rights, the grandmother was a proper person to file the petition. Lechuga v. Ore (In re Ore), 160 N.C. App. 586, 586 S.E.2d 486 (2003).

Out-of-State Guardians had Standing to File Petition. - Guardians who had custody of the child in Alabama had standing to file a petition for termination of parental rights pursuant to G.S. 7B-1103(a)(3). 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).

Foster Parents Properly Sought Termination of Mother's Parental Rights. - Pursuant to G.S. 7B-1103(a)(2), foster parents of a mother's child who had been previously appointed as the child's guardians properly filed a petition to terminate the mother's parental rights; another permanent planning review hearing did not have to be held prior to the filing of the termination petition. In re D.C., 225 N.C. App. 327, 737 S.E.2d 182 (2013).

Adoptive Parents Had Standing to File Termination Petition. - Trial court properly terminated a mother's parental rights while an adoption appeal was pending because the mother's relinquishment of her parental rights was valid and conformed to the mandatory statutory requirements, grounds existed to terminate her parental rights for failure to pay child support and in the best interests of the child, the district court's order originated as an adoption petition, and the adoptive parents had standing petition for termination of the mother's parental rights. In re Baby Boy, 238 N.C. App. 316, 767 S.E.2d 628 (2014).

No Standing To File Termination Petition. - 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).

Order terminating parental rights was vacated for lack of subject matter jurisdiction because the juvenile petition was not properly verified, as the signature of the person before whom the petition was verified was illegible, nor was any title for that person given, so (1) nothing showed that person's authority to acknowledge the verification, (2) nothing showed the department of social services obtained custody of the juvenile from a court of competent jurisdiction or had standing to move to terminate parental rights, and (3) the trial court's orders were void ab initio. In re N.T., 240 N.C. App. 33, 769 S.E.2d 658 (2015).

Maternal grandmother lacked standing to file a petition to terminate a father's parental rights to his child. The grandmother did not have standing under G.S. 7B-1103(a)(2) because it was undisputed that at the time she filed the termination petition, she had not been judicially appointed as the child's guardian. S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015).

Maternal grandmother lacked standing to file a petition to terminate a father's parental rights to his child. The grandmother did not have standing to file for termination of the father's parental rights pursuant to G.S. 7B-1103(a)(5) because she was not a person with whom the juvenile had resided for a continuous period of two years or more next preceding the filing of the petition or motion. S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015).

Because a maternal grandmother lacked standing to file a petition to terminate a father's parental rights to his child, the trial court did not have subject matter jurisdiction over the termination proceedings. S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015).

Jurisdiction to Terminate Parental Rights During Pendency of Custody Review Order Appeal. - Where the trial court terminated the mother's parental rights during the pendency of the mother's custody review order appeal, G.S. 1-294 did not deprive the trial court of jurisdiction to terminate the mother's parental rights, as such jurisdiction was granted under G.S. 7B-1101 and G.S. 7B-1103. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Two-Year Period in G.S. 7B-1103(a)(5) Not Tolled. - Two-year period required under G.S. 7B-1103(a)(5) was not tolled until a mother reached the age of majority, even though the mother did not have a guardian ad litem appointed in earlier neglect and dependency proceedings, as the mother was an adult during the entire termination of parental rights proceeding, was represented by counsel, and did not directly attack the prior neglect and dependency proceedings based on the failure to appoint a guardian ad litem for the mother; G.S. 7B-1103(a)(5) was not a statute of limitations, or the equivalent of one. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300 (2005).

While it is a correct statement of the law that a statute of limitations is tolled during the minority of a plaintiff, it does not follow that the two-year requirement of G.S. 7B-1103(a)(5) is a statute of limitations or the equivalent of such; this statute confers standing on the petitioners to file a termination of parental rights proceeding based on their two-year relationship with the child, which is in no manner related to the parent or his or her relationship with the child during that two-year period, and the person or persons with whom legal custody lies during this time period is irrelevant. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300 (2005).

Jurisdiction Absent Where Petition Was Insufficient. - Because the petition for termination of parental rights was not accompanied by a copy of the custody order then in effect, the petition failed to confer subject matter jurisdiction on the trial court; that omission need not have been fatal if the Vance County Department of Social Services (DSS) had simply amended the petition by attaching the proper custody order or otherwise ensured the custody order was made a part of the record before the trial court. Thus, it was the failure by the DSS either to attach the custody order to the petition or to remedy that omission that ultimately deprived the trial court of subject matter jurisdiction. In re T.B., 177 N.C. App. 790, 629 S.E.2d 895 (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, Even Though No Order Conferring Custody Was Attached to Motion. - Motion to terminate a mother's parental rights was not void ab initio, and the trial court had subject matter jurisdiction, even though no order conferring custody of the children upon department of social services (DSS) was attached to the motion as required by G.S. 7B-1104(5); although under G.S. 7B-1103, to have standing to file for termination of parental rights, DSS had to prove that it had legal custody at the time the petition was filed, the record contained a custody order awarding DSS custody of the children, and the mother failed to show that she was prejudiced in any way by the failure to physically attach a custody order to the motion. In re W.L.M., 181 N.C. App. 518, 640 S.E.2d 439 (2007).

Trial Court Had Jurisdiction to Terminate Parental Rights. - Trial court had jurisdiction to terminate a mother's parental rights because it had jurisdiction over the underlying neglect and dependency action and issued a valid custody order to the county department of social services, giving it standing to file the petitions for termination of parental rights pursuant to G.S. 7B-1103(a)(3); a summons was issued a day after the juvenile petitions were filed, and although the mother was not served with the summonses until after their expiration, she made a general appearance in the action before the trial court at the non-secure custody hearings, thereby waiving any objection to personal jurisdiction. In re S'N.A.S., 201 N.C. App. 581, 686 S.E.2d 917 (2009).

Petition Held Sufficient. - Father's claim in termination of parental rights proceeding that the petition to terminate was deficient because the underlying juvenile petition was deficient had to be rejected; the underlying juvenile petition was sufficient to confer jurisdiction on the trial court because it was verified, and the petition to terminate was proper because it was signed and verified. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); A Child's Hope, LLC v. Doe, 178 N.C. App. 96, 630 S.E.2d 673 (2006).

Cited in In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007); In re A.S.Y., 208 N.C. App. 530, 703 S.E.2d 797 (2010); In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this Chapter.

Foster Parents Have Standing. - Irrespective of their status toward the county department of social services, foster parents have standing pursuant to subdivision (5) of this section to petition for termination of parental rights. See opinion of Attorney General to James W. Swindell, Assistant County Attorney, Durham County, 50 N.C.A.G. 1 (1980).

§ 7B-1104. Petition or motion.

The petition, or motion pursuant to G.S. 7B-1102, shall be verified by the petitioner or movant and shall be entitled "In Re (last name of juvenile), a minor juvenile", who shall be a party to the action, and shall set forth such of the following facts as are known; and with respect to the facts which are unknown the petitioner or movant shall so state:

  1. The name of the juvenile as it appears on the juvenile's birth certificate, the date and place of birth, and the county where the juvenile is presently residing.
  2. The name and address of the petitioner or movant and facts sufficient to identify the petitioner or movant as one authorized by G.S. 7B-1103 to file a petition or motion.
  3. (See Editor's note) The name and address of the parents of the juvenile. If the name or address of one or both parents is unknown to the petitioner or movant, the petitioner or movant shall set forth with particularity the petitioner's or movant's efforts to ascertain the identity or whereabouts of the parent or parents. The information may be contained in an affidavit attached to the petition or motion and incorporated therein by reference. A person whose actions resulted in a conviction under G.S. 14-27.21, 14-27.22, 14-27.23, or 14-27.24 and the conception of the juvenile need not be named in the petition.
  4. The name and address of any person who has been judicially appointed as guardian of the person of the juvenile.
  5. The name and address of any person or agency to whom custody of the juvenile has been given by a court of this or any other state; and a copy of the custody order shall be attached to the petition or motion.
  6. Facts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.
  7. That the petition or motion has not been filed to circumvent the provisions of Article 2 of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act.

History

(1977, c. 879, s. 8; 1979, c. 110, s. 8; 1981, c. 469, s. 23; 1987, c. 550, s. 15; 1998-202, s. 6; 1999-223, s. 7; 1999-456, s. 60; 2000-183, s. 5; 2004-128, s. 14; 2009-38, s. 2; 2015-181, s. 24; 2015-264, s. 33(c).)

Editor's Note. - This section was originally enacted as G.S. 7B-1103. It has been renumbered as this section at the direction of the Revisor of Statutes.

Subdivision (3), as amended by Session Laws 2004-128, s. 14, which added the sentence beginning "A person whose actions ... " is applicable to offenses committed on or after December 1, 2004.

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 2015-264, s. 33(d) made the amendment to this section by Session Laws 2015-264, s. 33(c), which deleted "G.S." preceding "14-27.22" and "14-27.24"; and inserted "14-27.23" in subdivision (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 2009-38, s. 2, effective May 27, 2009, inserted "who shall be a party to the action" in the introductory language.

Session Laws 2015-181, s. 24, 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 (3).

Session Laws 2015-264, s. 33(c), effective December 1, 2015, deleted "G.S." preceding "14-27.22" and "14-27.24"; and inserted "14-27.23" in subdivision (3). For applicability, see Editor's note.

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 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.

Invocation of Court's Jurisdiction. - Like the verified pleadings in divorce and juvenile actions, verified petitions for the termination of parental rights are necessary to invoke the jurisdiction of the court over the subject matter. In re Triscari Children, 109 N.C. App. 285, 426 S.E.2d 435 (1993).

Because the petition for termination of parental rights was not accompanied by a copy of the custody order then in effect, the petition failed to confer subject matter jurisdiction on the trial court; that omission need not have been fatal if the Vance County Department of Social Services (DSS) had simply amended the petition by attaching the proper custody order or otherwise ensured the custody order was made a part of the record before the trial court. Thus, it was the failure by the DSS either to attach the custody order to the petition or to remedy that omission that ultimately deprived the trial court of subject matter jurisdiction. In re T.B., 177 N.C. App. 790, 629 S.E.2d 895 (2006).

Where Vance County Department of Social Services (DSS) filed a motion for termination of parental rights, the trial court had subject matter jurisdiction only if the record included a copy of an order, in effect when the petition was filed, that awarded DSS custody of the child; that was implicitly recognized by G.S. 7B-1104(5), which set out the requirements for a petition for termination of parental rights, and provided in part that the petition would set forth the name and address of any person or agency to whom custody of the juvenile had been given by a court of North Carolina or any other state, and a copy of the custody order would be attached to the petition or motion for termination. In re T.B., 177 N.C. App. 790, 629 S.E.2d 895 (2006).

Although a social services agency filed a petition to terminate a parent's parental rights pursuant to G.S. 7B-1102, the petition was not verified as required by G.S. 7B-1104; therefore, the trial court never obtained jurisdiction over the termination action, and the trial court's termination of parental rights order was void. In re T.R.M., 208 N.C. App. 160, 702 S.E.2d 108 (2010).

Pleading Requirements. - North Carolina Supreme Court agrees with the Court of Appeals that while there is no requirement that the factual allegations in a petition seeking to terminate parental rights be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue. In re B.C.B., 374 N.C. 32, 839 S.E.2d 748 (2020).

Failure to Attach Custody Order. - DSS's failure to attach a custody order to a termination of parental rights petition in accordance with G.S. 7B-1104(5) was not fatal as a mother did not demonstrate any prejudice arising from the technical defect, as there was no indication that the mother was unaware of the child's placement with DSS at any point during the case. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

DSS's failure to attach a custody order to a termination of parental rights petition in accordance with G.S. 7B-1104(5) was not fatal, as a father did not demonstrate any prejudice arising from the technical defect as from the time the father became a party to the case through his second counsel's withdrawal, he was consistently represented by counsel at hearings at which it was made abundantly clear that his child was in DSS custody, and the attorneys' knowledge was imputed to the father. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

Father did not demonstrate prejudice from the guardian's failure to attach a copy of the custody order to the petition for termination, as required by G.S. 7B-1104(5), because there was no indication that the father was unaware of the child's placement at any point during the case; in fact, the father entered into a consent order providing for the child's guardianship with the guardians, relatives of the child's mother. 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).

Trial Court Had Subject Matter Jurisdiction, Even Though No Order Conferring Custody Was Attached to Motion. - Motion to terminate a mother's parental rights was not void ab initio, and the trial court had subject matter jurisdiction, even though no order conferring custody of the children upon department of social services (DSS) was attached to the motion as required by G.S. 7B-1104(5); although under G.S. 7B-1103, to have standing to file for termination of parental rights, DSS had to prove that it had legal custody at the time the petition was filed, the record contained a custody order awarding DSS custody of the children, and the mother failed to show that she was prejudiced in any way by the failure to physically attach a custody order to the motion. In re W.L.M., 181 N.C. App. 518, 640 S.E.2d 439 (2007).

Order terminating parental rights was vacated on appeal because the failure of the department of social services to verify the petition seeking termination of parental rights as required by G.S. 7B-1104 deprived the trial court of subject matter jurisdiction. In re C.M.H., 187 N.C. App. 807, 653 S.E.2d 929 (2007).

Order terminating parental rights was vacated for lack of subject matter jurisdiction because the juvenile petition was not properly verified, as the signature of the person before whom the petition was verified was illegible, nor was any title for that person given, so (1) nothing showed that person's authority to acknowledge the verification, (2) nothing showed the department of social services obtained custody of the juvenile from a court of competent jurisdiction or had standing to move to terminate parental rights, and (3) the trial court's orders were void ab initio. In re N.T., 240 N.C. App. 33, 769 S.E.2d 658 (2015).

When an incarcerated parent is denied transportation to the hearing in contested termination cases, the better practice is for the court, when so moved, to provide the funds necessary for the deposing of the incarcerated parent. The parent's deposition, combined with representation by counsel at the hearing, will ordinarily provide sufficient participation by the incarcerated parent so as to reduce the risk of error attributable to his absence to a level consistent with due process. In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158, appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992).

Petition Held Sufficient. - Although petitioners' bare recitation of the alleged statutory grounds for termination did not comply with the requirement in former G.S. 7A-289.25(6) (see now this section) that the petition state "facts which are sufficient to warrant a determination" that grounds exist to warrant termination, the petition incorporated an attached custody award, and the custody award stated sufficient facts to warrant such a determination. In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158, appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992).

Trial court did not err in refusing to dismiss the father's petition for termination of the mother's parental rights due to the father's failure to include language, required under G.S. 7B-1104(7), that the petition "has not been filed to circumvent the provisions of Article 2 of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act"; there was sufficient evidence to establish that the petition was not filed to circumvent the Act and to cure the father's error, and the mother failed to demonstrate she was prejudiced. In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003).

Trial court did not err in considering the issue of neglect due to the father's failure to allege that the mother had neglected the child since, under G.S. 7B-1104(6), the factual allegations in the father's petition were sufficient to give the mother notice as to the issue of neglect. In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003).

Allegations that the mother did not follow through with all of the components of the case plan, tested positive for marijuana, cocaine, and benzodiazepines, failed to hold a job, failed to obtain and maintain stable housing, and failed to pay child support were sufficient to put the mother on notice of neglect allegations. In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005).

There is no authority that compels dismissal of an action solely because petitioner fails to include the G.S. 7B-1104(7) statement of fact in a termination petition. In re J.D.S., 170 N.C. App. 244, 612 S.E.2d 350 (2005), cert. denied, - U.S. - , 360 N.C. 64, 623 S.E.2d 584 (2005).

Although the termination of parental rights petition did not specifically refer to G.S. 7B-1111(a)(6), the petition, which contained language directly paralleling G.S. 7B-1111(a)(6), provided the mother with sufficient notice of the acts, omissions, or conditions on which the petition was based. In re A.H., 183 N.C. App. 609, 644 S.E.2d 635 (2007).

Termination petition was sufficient to confer jurisdiction on the trial court; the father asserted no prejudice from the alleged omissions, and none were found. The father had access to all required information and the petition was substantially compliant on its face. In re T.M.H., 186 N.C. App. 451, 652 S.E.2d 1 (2007), review denied, stay denied, 362 N.C. 87, 657 S.E.2d 31 (2007.

Father's claim in termination of parental rights proceeding that the petition to terminate was deficient because the underlying juvenile petition was deficient had to be rejected; the underlying juvenile petition was sufficient to confer jurisdiction on the trial court because it was verified, and the petition to terminate was proper because it was signed and verified. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).

Petitioner specifically alleged that since September 2017, respondent had declined to exercise visitation as permitted by the trial court; thus, the petition contained more than a mere recitation of the statutory grounds for termination and gave respondent sufficient notice of the acts or omissions at issue, and thus the trial court's denial of respondent's motion to dismiss was appropriate. In re B.C.B., 374 N.C. 32, 839 S.E.2d 748 (2020).

Newly Identified Biological Father. - Defendant's proposed use of G.S. 1A-1, N.C. R. Civ. P. 15 to deprive the court of personal jurisdiction over the newly identified biological father, despite compliance with G.S. 7B-1105, through the creation of a "new action" when the biological father was eventually identified and made a party to the action would have defeated the entire purpose of G.S. 7B-1104 and G.S. 7B-1105; therefore, the biological father was properly added as a party to the termination proceeding pursuant to the trial court's order and the subsequent issuance and service upon him of the summons and petition to terminate parental rights in the minor child. Because G.S. 7B-1105(b) did not require that the Department of Social Services file an amended petition upon identification of the unknown parent, and the amended petition did not change or otherwise add an additional ground for terminating the father's parental rights and did not add a party to the proceeding as the biological father was already a party to the termination proceeding, the amended petition to terminate parental rights to the minor child did not supersede the original petition such that a new action was brought upon its filing. In re M.M., 200 N.C. App. 248, 684 S.E.2d 463 (2009).

Petition Held Insufficient. - While there was sufficient evidence to support the termination of mother's parental rights with regard to her two older children, including the children's multiple placements in foster homes, the mother's severe mental problems, and the mother's inability to provide a stable residence, the trial court should have dismissed the Department of Social Services' petition for termination of parental rights as to her youngest child, removed from her care the day after its birth, because the petition did not allege any facts to support the allegation that the mother was unable to provide for the proper care and supervision of this child, as was required by G.S. 7B-1104(6). In re Hardesty, 150 N.C. App. 380, 563 S.E.2d 79 (2002).

Where a termination of rights petition did not address guardianship issues raised by the noncustodial parent respondent, where no custody order was attached, and where the trial court merely announced that it had decided the claimed guardianship was void, without further explanation, it was impossible to review the trial court's decision and the appeals court was forced to hold that the trial court had lacked subject matter jurisdiction due to the facial defects of the petition. In re Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298 (2005).

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).

Because the allegations in the termination of parental rights petition were bare recitations of the alleged statutory grounds for termination listed in G.S. 7B-1111, the motion to terminate the mother's parental rights failed to comply with this section, and was insufficient to put the mother on notice as to what acts, omissions, or conditions were at issue, and the termination of her rights was improper. In re J.S.K., 256 N.C. App. 702, 807 S.E.2d 188 (2017).

It was improper to terminate a father's parental rights for leaving the children in foster care for 12 months without reasonable progress to alleviate the conditions leading to the children's removal because the petition alleged no such ground, so the father had no notice of the allegation. In re L.S., 262 N.C. App. 565, 822 S.E.2d 506 (2018).

Service Held Sufficient. - Failure to attach custody order to petition to terminate parental rights or include statements within petition explaining petitioner's efforts to find parent, as required by former G.S. 7A-289.25 (see now this section), where service was by publication, was not error which resulted in any prejudice to respondent, where service by publication complied with G.S. 1A-1, Rule 4(j1), and informed respondent of the petition filed against her, her need to answer, the availability of counsel if she was indigent, and the telephone number of the Clerk of Juvenile Court if she needed further information. In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d 539 (1996).

Sufficiency of Seven-Day Order Inapplicable. - It was not necessary to decide if the seven-day order was sufficient under G.S. 7B-1104(5) because the trial court admitted into evidence the order resulting from the hearing initially adjudicating the child to be a neglected child and awarding custody to the department. In re D.J.G., 183 N.C. App. 137, 643 S.E.2d 672 (2007).

Challenge to Sufficiency of Petition Not Preserved for Review. - Challenge to the sufficiency of the facts alleged in the termination petition was not preserved for appellate review because the father only objected to the sufficiency of the evidence, not the legal insufficiency of the petition, when the father moved to dismiss the action after the presentation of the guardians' evidence and at the close of all evidence. 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).

Applied in In re B.S.D.S., 163 N.C. App. 540, 594 S.E.2d 89 (2004); In re B.D., 174 N.C. App. 234, 620 S.E.2d 913 (2005), cert. denied, - N.C. - , 628 S.E.2d 245 (2006).

Cited in In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007); In re T.J.F., 230 N.C. App. 531, 750 S.E.2d 568 (2013).


§ 7B-1105. Preliminary hearing; unknown parent.

  1. If either the name or identity of any parent whose parental rights the petitioner seeks to terminate is not known to the petitioner, the court shall, within 10 days from the date of filing of the petition, or during the next term of court in the county where the petition is filed if there is no court in the county in that 10-day period, conduct a preliminary hearing to ascertain the name or identity of such parent.
  2. The court may, in its discretion, inquire of any known parent of the juvenile concerning the identity of the unknown parent and may order the petitioner to conduct a diligent search for the parent. Should the court ascertain the name or identity of the parent, it shall enter a finding to that effect; and the parent shall be summoned to appear in accordance with G.S. 7B-1106.
  3. Notice of the preliminary hearing need be given only to the petitioner who shall appear at the hearing, but the court may cause summons to be issued to any person directing the person to appear and testify.
  4. If the court is unable to ascertain the name or identity of the unknown parent, the court shall order publication of notice of the termination proceeding and shall specifically order the place or places of publication and the contents of the notice which the court concludes is most likely to identify the juvenile to such unknown parent. The notice shall be published in a newspaper qualified for legal advertising in accordance with G.S. 1-597 and G.S. 1-598 and published in the counties directed by the court, once a week for three successive weeks. Provided, further, the notice shall:
    1. Designate the court in which the petition is pending;
    2. Be directed to "the father (mother) (father and mother) of a male (female) juvenile born on or about ______________ in                                                      (date)                          ______________ County, ______________,                        (city)      ________________________, respondent";                  (State)
    3. Designate the docket number and title of the case (the court may direct the actual name of the title be eliminated and the words "In Re Doe" substituted therefor);
    4. State that a petition seeking to terminate the parental rights of the respondent has been filed;
    5. Direct the respondent to answer the petition within 30 days after a date stated in the notice, exclusive of such date, which date so stated shall be the date of first publication of notice and be substantially in the form as set forth in G.S. 1A-1, Rule 4(j1); and
    6. State that the respondent's parental rights to the juvenile will be terminated upon failure to answer the petition within the time prescribed.
  5. The court shall issue the order required by subsections (b) and (d) of this section within 30 days from the date of the preliminary hearing unless the court shall determine that additional time for investigation is required.
  6. Upon the failure of the parent served by publication pursuant to subsection (d) of this section to answer the petition within the time prescribed, the court shall issue an order terminating all parental rights of the unknown parent.
  7. No summons shall be required for a parent whose name or identity is unknown and who is served by publication as provided in this section.

Upon completion of the service, an affidavit of the publisher shall be filed with the court.

History

(1977, c. 879, s. 8; 1987, c. 282, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2011-295, s. 12; 2018-68, s. 5.1.)

Editor's Note. - This section was originally enacted as G.S. 7B-1104. It has been renumbered as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-295, s. 12, effective October 1, 2011, and applicable to actions filed or pending on or after that date, substituted "and may order the petitioner to conduct a diligent search" for "and may appoint a guardian ad litem for the unknown parent to conduct a diligent search" in the first sentence of subsection (b).

Session Laws 2018-68, s. 5.1, effective October 1, 2018, added subsection (g).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Former G.S. 7A-289.26 (see now this section) contains no provision to determine the "whereabouts" of the parent whose parental rights the petitioner seeks to terminate; rather, the section authorizes a preliminary hearing to ascertain the name or identity of such parent. In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, cert. denied, 314 N.C. 665, 335 S.E.2d 322 (1985).

Due diligence in locating a parent is required in all parental rights termination cases before notice of publication can properly be used. In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, cert. denied, 314 N.C. 665, 335 S.E.2d 322 (1985).

Newly Identified Biological Father. - Defendant's proposed use of G.S. 1A-1, N.C. R. Civ. P. 15 to deprive the court of personal jurisdiction over the newly identified biological father, despite compliance with G.S. 7B-1105, through the creation of a "new action" when the biological father was eventually identified and made a party to the action would have defeated the entire purpose of G.S. 7B-1104 and G.S. 7B-1105; therefore, the biological father was properly added as a party to the termination proceeding pursuant to the trial court's order and the subsequent issuance and service upon him of the summons and petition to terminate parental rights in the minor child. Because G.S. 7B-1105(b) did not require that the Department of Social Services file an amended petition upon identification of the unknown parent, and the amended petition did not change or otherwise add an additional ground for terminating the father's parental rights and did not add a party to the proceeding as the biological father was already a party to the termination proceeding, the amended petition to terminate parental rights to the minor child did not supersede the original petition such that a new action was brought upon its filing. In re M.M., 200 N.C. App. 248, 684 S.E.2d 463 (2009).

Paternity Sufficiently Determined. - Father's paternity of the subject child in a termination of parental rights proceeding was sufficiently found because, while the father's putative paternity was sufficient to terminate the father's putative parental rights, the trial court sufficiently identified the father as the child's father as the judgment found the father lied about fathering the child and referred to the father's mother as the child's paternal grandmother. In re A.N.S., 239 N.C. App. 46, 767 S.E.2d 699 (2015).

It was no error to terminate a father's parental rights without holding a preliminary hearing to find the father's paternity because, inter alia, contingent alternative allegations about a "John Doe" father were not inconsistent with the father's paternity, as (1) no factual allegations suggested John Doe's paternity, and (2) the allegation's contingency was consistent with allegations that the father was not named on the birth certificate and paternity had not been judicially established. In re A.N.S., 239 N.C. App. 46, 767 S.E.2d 699 (2015).

Hearing Not Required. - It was no error to terminate a father's parental rights without holding a preliminary hearing to find the father's paternity because, inter alia, the petition indicated the petitioning agency knew the father was the child's father. In re A.N.S., 239 N.C. App. 46, 767 S.E.2d 699 (2015).

Cited in In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008); In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).


§ 7B-1106. Issuance of summons.

  1. Except as provided in G.S. 7B-1105, upon the filing of the petition, the court shall cause a summons to be issued. The summons shall be directed to the following persons or agency, not otherwise a party petitioner, who shall be named as respondents:
    1. The parents of the juvenile. However, a summons does not need to be directed to or served upon any parent who, under Chapter 48 of the General Statutes, has irrevocably relinquished the juvenile to a county department of social services or licensed child-placing agency or to any parent who has consented to the adoption of the juvenile by the petitioner.
    2. Any person who has been judicially appointed as guardian of the person of the juvenile.
    3. The custodian of the juvenile appointed by a court of competent jurisdiction.
    4. Any county department of social services or licensed child-placing agency to whom a juvenile has been released by one parent pursuant to Part 7 of Article 3 of Chapter 48 of the General Statutes or any county department of social services to whom placement responsibility for the child has been given by a court of competent jurisdiction.
    5. Repealed by Session Laws 2009-38, s. 3, effective May 27, 2009.
  2. If a guardian ad litem has been appointed for the juvenile pursuant to G.S. 7B-601 and has not been relieved of responsibility or if the court appoints a guardian ad litem for the juvenile after the petition is filed, a copy of all pleadings and other papers required to be served shall be served on the juvenile's guardian ad litem or attorney advocate pursuant to procedures established under G.S. 1A-1, Rule 5.
  3. If an attorney has been appointed for a respondent pursuant to G.S. 7B-602 and has not been relieved of responsibility, a copy of all pleadings and other papers required to be served on the respondent shall be served on the respondent's attorney pursuant to procedures established under G.S. 1A-1, Rule 5.
  4. The summons shall be issued for the purpose of terminating parental rights pursuant to the provisions of subsection (a) of this section and shall include:
    1. The name of the minor juvenile;
    2. Notice that a written answer to the petition must be filed with the clerk who signed the petition within 30 days after service of the summons and a copy of the petition, or the parent's rights may be terminated;
    3. Notice that any counsel appointed previously and still representing the parent in an abuse, neglect, or dependency proceeding shall continue to represent the parent unless otherwise ordered by the court;
    4. Notice that if the parent is indigent and is not already represented by appointed counsel, the parent is entitled to appointed counsel, that provisional counsel has been appointed, and that the appointment of provisional counsel shall be reviewed by the court at the first hearing after service;
    5. Notice that the date, time, and place of any pretrial hearing pursuant to G.S. 7B-1108.1 and the hearing on the petition will be mailed by the petitioner upon filing of the answer or 30 days from the date of service if no answer is filed; and
    6. Notice of the purpose of the hearing and notice that the parents may attend the termination hearing.
  5. If a county department of social services, not otherwise a party petitioner, is served with a petition alleging that the parental rights of the parent should be terminated pursuant to G.S. 7B-1111, the department shall file a written answer and shall be deemed a party to the proceeding.

The summons shall notify the respondents to file a written answer within 30 days after service of the summons and petition. Service of the summons shall be completed as provided under the procedures established by G.S. 1A-1, Rule 4. Prior to service by publication under G.S. 1A-1, the court shall make findings of fact that a respondent cannot otherwise be served despite diligent efforts made by petitioner for personal service. The court shall approve the form of the notice before it is published. The parent of the juvenile shall not be deemed to be under a disability even though the parent is a minor.

History

(1977, c. 879, s. 8; 1981, c. 966, s. 2; 1983, c. 581, ss. 1, 2; 1995, c. 457, s. 4; 1998-202, s. 6; 1998-229, ss. 10, 27; 1999-456, s. 60; 2000-183, s. 13; 2001-208, s. 28; 2001-487, s. 101; 2009-38, s. 3; 2009-311, s. 10; 2011-295, s. 13; 2013-129, s. 33; 2017-161, s. 11.)

Editor's Note. - This section was originally enacted as G.S. 7B-1105. It has been renumbered as this section at the direction of the Revisor of Statutes.

Session Laws 2013-129, s. 41, made subsection (a2), as added by Session Laws 2013-129, s. 33, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2009-38, s. 3, effective May 27, 2009, in subsection (a), added the second sentence in subdivision (a)(1), deleted subdivision (a)(5), which read: "The juvenile," rewrote the last paragraph of subsection (a), and made related punctuation changes; and added subsection (a1).

Session Laws 2009-311, s. 10, effective October 1, 2009, rewrote subdivisions (b)(3) and (b)(4), and in subdivision (b)(5), inserted "any pretrial hearing pursuant to G.S. 7B-1108.1 and" and "on the petition."

Session Laws 2011-295, s. 13, effective October 1, 2011, and applicable to actions filed or pending on or after that date, substituted "petitioner" for "clerk" in subdivision (b)(5).

Session Laws 2013-129, s. 33, effective October 1, 2013, added subsection (a2). For applicability, see editor's note.

Session Laws 2017-161, s. 11, effective October 1, 2017, in the ending paragraph of subsection (a), substituted "Rule 4" for "Rule 4(j)", added the third and fourth sentences, and substituted "The parent" for "But the parent" in the last sentence.

Legal Periodicals. - For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

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).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Where the "name or identity" of a respondent parent is known, but his or her whereabouts are unknown, the petitioner in a parental rights termination case must proceed under former G.S. 7A-289.27 (see now this section) and must comply with G.S. 1A-1, Rule 4(j1) as regards service by publication, and specifically, with the due diligence requirement contained therein. In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, cert. denied, 314 N.C. 665, 335 S.E.2d 322 (1985).

Failure to attach custody order to petition to terminate parental rights or include statements within petition explaining petitioner's efforts to find parent, as required by former G.S. 7A-289.25 (see now G.S. 7B-1104), where service was by publication, was not error which resulted in any prejudice to respondent, where service by publication complied with G.S. 1A-1, Rule 4(j1), and informed respondent of the petition filed against her, her need to answer, the availability of counsel if she was indigent, and the telephone number of the Clerk of Juvenile Court if she needed further information. In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d 539 (1996).

Service of petition and summons to terminate parental rights by publication must comply with former G.S. 7A-289.27 (see now this section) and G.S. 1A-1, Rule 4(j1). In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d 539 (1996).

Service Upon Child. - Trial court did not err by exercising personal jurisdiction over a mother with regard to terminating her parental rights to her son by serving the summons required by G.S. 7B-1106(a)(5) upon the attorney advocate of the child's guardian ad litem rather than the guardian ad litem, because the guardian ad litem did not object at trial to the sufficiency of service nor did the guardian ad litem argue the issue on appeal; the mother actually lacked standing to challenge service of the summons in that she was not an aggrieved party on that issue. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).

Because no summons was issued to the juvenile as required by G.S. 7B-1106(a), the order terminating the father's parental rights had to be vacated. In re K.A.D., 187 N.C. App. 502, 653 S.E.2d 427 (2007).

Because a county agency failed to issue a summons to a minor child or the child's guardian ad litem under G.S. 7B-1106(a)(5), the trial court lacked subject matter jurisdiction over a termination of parental rights proceeding; had the agency filed a motion to terminate under G.S. 7B-1102 in an ongoing juvenile abuse, neglect, and dependency case, the summons would not have been required, and the agency would only have been required to service notice of the motion to terminate on the parties specified in G.S. 7B-1106.1. In re I.D.G., 188 N.C. App. 629, 655 S.E.2d 858 (2008), review dismissed, 363 N.C. 127, 673 S.E.2d 133 (2009).

Where the summons that was issued in a case involving the termination of parental rights named both the mother and father, but failed to name the juvenile, the trial court lacked jurisdiction to order that their parental rights in the juvenile be terminated. Pursuant to G.S. 7B-1106(a)(5), the summons had to name the juvenile in order for the trial court to acquire subject matter jurisdiction over the juvenile in a case involving the termination of parental rights. In re A.F.H-G, 189 N.C. App. 160, 657 S.E.2d 738 (2008).

Service of Summons. - Though the child was not served the summons required by G.S. 7B-1106(a)(5), nor was the child's guardian ad litem, but rather, the guardian ad litem's attorney advocate received the summons regarding the termination of parental rights proceeding, such procedural irregularity caused no prejudice to the parents and the guardian ad litem never objected to the same. In re B.D., 174 N.C. App. 234, 620 S.E.2d 913 (2005), cert. denied, - N.C. - , 628 S.E.2d 245 (2006).

Termination of a mother's parental rights pursuant to G.S. 7B-1111(a)(1) was vacated because the mother was not provided notice of the termination hearing as required by G.S. 7B-1106, as there was no evidence that the addresses to which notices were sent were the mother's dwelling, and this fact, along with the fact that the mother did not attend the hearing or respond in any way, refuted the presumption of valid service under G.S. 1A-1-4(j)(2). In re K.N., 181 N.C. App. 736, 640 S.E.2d 813 (2007).

Where a petition to terminate parental rights was captioned with the names of both children, but the summons that was issued referenced only the younger child, the trial court lacked subject matter jurisdiction to terminate the mother's parental rights in the older child because a summons pertaining to the child was not issued. In re C.T., 182 N.C. App. 472, 643 S.E.2d 23 (2007).

When a juvenile's guardian ad litem was represented by an attorney advocate in a termination of parental rights proceeding, the service of a summons on the attorney advocate amounted to service on the guardian ad litem. Therefore, service of the summons on the guardian ad litem constituted service on the juvenile, as expressly stated in G.S. 7B-1106(a). In re J.A.P., 189 N.C. App. 683, 659 S.E.2d 14 (2008).

Because the captions of the summonses named the children, and because the guardian ad litem (GAL) appointed for the children certified that the GAL was served with a copy of the summonses, pursuant to G.S. 7B-1106(a)(5), the trial court had subject matter jurisdiction over the mother's parental rights termination proceedings. In re N.C.H., 192 N.C. App. 445, 665 S.E.2d 812 (2008), aff'd, 363 N.C. 116, 678 S.E.2d 658 (2009).

Since the failure of a summons to comply with G.S. 7B-1106(a)(5) implicated the trial court's jurisdiction over the children, not over the termination of parental rights action as a whole, pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(h)(1), a general appearance by the children's guardian ad litem and attorney advocate waived any objection to the jurisdictional requirements of G.S. 7B-1101. In re J.T., 363 N.C. 1, 672 S.E.2d 17 (2009).

Trial court had subject matter jurisdiction over termination of parental rights proceedings against a mother and father because the caption of the summons contained the name of their child, and copies of the summons and petition were served on the child's guardian ad litem at the county courthouse. In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008), review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).

Trial court had exclusive, original jurisdiction over the termination of a parental rights case regarding a child pursuant to the statute and the Uniform Child-Custody Jurisdiction and Enforcement Act because the child resided in, was found in, or was in the legal or actual custody of a county department of social services at the time of filing of the petition, North Carolina was her home state, and process was served on the mother. In re N.P., - N.C. - , - S.E.2d - (Mar. 12, 2021).

Party to Testify Without Issuance of Subpoena. - A respondent in a proceeding to terminate her parental rights is a party to the proceeding, and could be called to testify as an adverse party when she appeared at the proceeding, and a subpoena was not required. In re Davis, 116 N.C. App. 409, 448 S.E.2d 303, cert. denied, 338 N.C. 516, 452 S.E.2d 808 (1994).

Right to Counsel. - Mother who was facing termination of parental rights had the right to be represented by counsel; the trial court erred when it denied the mother's request for court-appointed counsel, even though the mother (1) had not answered a petition that the department of social services filed, (2) did not attend a pretrial conference that the trial court scheduled, and (3) made her request for counsel on the day the case was set for a hearing. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), cert. denied, 359 N.C. 632, 616 S.E.2d 230 (2005).

Summons Did Not Vest Trial Court With Subject Matter Jurisdiction Over Improperly Commenced Action. - Because G.S. 7B-1100 et seq. provided the exclusive procedures for a termination of parental rights proceeding and contemplated that a termination petition be brought in a separate action, the trial court lacked subject matter jurisdiction over a termination of parental rights action brought as a counterclaim to a visitation action; although the trial court had tried to rectify the error by having summonses issued under G.S. 7B-1106(a), the issuance of a summons alone did not vest a trial court with subject matter jurisdiction over an action that was never properly commenced. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007).

Improper Issuance of Summons Only Implicated Personal Jurisdiction, Not Subject Matter Jurisdiction. - 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).

Waiver of Insufficient Process by Making General Appearance. - Since the failure of a summons to comply with G.S. 7B-1106(a)(5) implicated the trial court's jurisdiction over the children, not over the termination of parental rights action as a whole, pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(h)(1), a general appearance by the children's guardian ad litem and attorney advocate waived any objection to the jurisdictional requirements of G.S. 7B-1101. In re J.T., 363 N.C. 1, 672 S.E.2d 17 (2009).

Although a mother received improper service of a summons to a petition seeking to terminate her parental rights pursuant to G.S. 1A-1, Rule 4, because she acknowledged service 285 days after the summons was issued, she waived any objection to the trial court's jurisdiction by answering and appearing. In re N.E.L., 202 N.C. App. 576, 688 S.E.2d 803 (2010).

Applied in In re S.N., - N.C. App. - , - S.E.2d - (Oct. 21, 2008); In re N.E.L., 197 N.C. App. 395, 676 S.E.2d 907 (2009).

Cited in In re Brown, 141 N.C. App. 550, 539 S.E.2d 366 (2000); In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006); 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 re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485 (2009); Boseman v. Jarrell, 199 N.C. App. 128, 681 S.E.2d 374 (2009), aff'd in part, rev'd in part, and modified, 364 N.C. 537, 704 S.E.2d 494, 2010 N.C. LEXIS 1080 (2010); In re M.M., 200 N.C. App. 248, 684 S.E.2d 463 (2009); In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012); In re J.D., 234 N.C. App. 342, 759 S.E.2d 375 (2014); In re A.N.S., 239 N.C. App. 46, 767 S.E.2d 699 (2015); In re M.G., 239 N.C. App. 77, 767 S.E.2d 436 (2015); In re P.A., 241 N.C. App. 53, 772 S.E.2d 240 (2015).


§ 7B-1106.1. Notice in pending child abuse, neglect, or dependency cases.

  1. Upon the filing of a motion pursuant to G.S. 7B-1102, the movant shall prepare a notice directed to each of the following persons or agency, not otherwise a movant:
    1. The parents of the juvenile. However, notice does not need to be directed to or served upon any parent who, under Chapter 48 of the General Statutes, has irrevocably relinquished the juvenile to a county department of social services or licensed child-placing agency or to any parent who has consented to the adoption of the juvenile by the movant.
    2. Any person who has been judicially appointed as guardian of the person of the juvenile.
    3. The custodian of the juvenile appointed by a court of competent jurisdiction.
    4. Any county department of social services or licensed child-placing agency to whom a juvenile has been released by one parent pursuant to Part 7 of Article 3 of Chapter 48 of the General Statutes or any county department of social services to whom placement responsibility for the juvenile has been given by a court of competent jurisdiction.
    5. The juvenile's guardian ad litem or attorney advocate, if one has been appointed pursuant to G.S. 7B-601 and has not been relieved of responsibility.
    6. Repealed by Session Laws 2009-38, s. 4, effective May 27, 2009.
  2. The notice required by subsection (a) of this section shall include all of the following:
    1. The name of the minor juvenile.
    2. Notice that a written response to the motion must be filed with the clerk within 30 days after service of the motion and notice, or the parent's rights may be terminated.
    3. Notice that any counsel appointed previously and still representing the parent in an abuse, neglect, or dependency proceeding will continue to represent the parents unless otherwise ordered by the court.
    4. Notice that if the parent is indigent, the parent is entitled to appointed counsel and if the parent is not already represented by appointed counsel the parent may contact the clerk immediately to request counsel.
    5. Notice that the date, time, and place of any pretrial hearing pursuant to G.S. 7B-1108.1 and the hearing on the motion will be mailed by the moving party upon filing of the response or 30 days from the date of service if no response is filed.
    6. Notice of the purpose of the hearing and notice that the parents may attend the termination hearing.
  3. If a county department of social services, not otherwise a movant, is served with a motion seeking termination of a parent's rights, the director shall file a written response and shall be deemed a party to the proceeding.

The notice shall notify the person or agency to whom it is directed to file a written response within 30 days after service of the motion and notice. Service of the motion and notice shall be completed as provided under G.S. 7B-1102(b).

History

(2000-183, s. 6; 2009-38, s. 4; 2009-311, s. 11.)

Effect of Amendments. - Session Laws 2009-38, s. 4, effective May 27, 2009, in subdivision (a)(1), added the second sentence; in subdivision (a)(5), inserted "or attorney advocate"; deleted subdivision (a)(6), which read: "The juvenile, if the juvenile is 12 years of age or older at the time the motion is filed."; and in the last paragraph of subsection (a), deleted the former first sentence, which read: "Provided, no notice need be directed to or served upon any parent who, under Chapter 48 of the General Statutes, has irrevocably relinquished the juvenile to a county department of social services or licensed child-placing agency nor to any parent who has consented to the adoption of the juvenile by the movant."

Session Laws 2009-311, s. 11, effective October 1, 2009, in subdivision (b)(3), substituted "counsel appointed previously and still representing the parent in an" for "attorney appointed previously to represent the parent in the"; and in subdivision (b)(5), inserted "any pretrial hearing pursuant to G.S. 7B-1108.1 and the" and "on the motion."

CASE NOTES

Required Notice - Trial court erred in terminating the parental rights of parents to their minor children; the notice of the action required by this section provided to the parents by an agency failed to meet the statutory requirements for such a notice, the service of the notice was made mandatory by G.S. 1102 and G.S. 1A-1, Rule 5(b), and the agency's failure to provide a proper notice was reversible error. Orange County Dep't of Soc. Servs. v. Alexander (In re Alexander), 158 N.C. App. 522, 581 S.E.2d 466 (2003).

Trial court erred in terminating a mother's parental rights to her children; the notice of termination served on the mother pursuant to G.S. 7B-1106.1 by an agency did not contain all of the required information, and therefore a new hearing was required. In re D.A., 169 N.C. App. 245, 609 S.E.2d 471 (2005).

Since each notice contained all of the information required by G.S. 7B-1106.1(b), tracking the actual language used in the statute, and the certificate of service attached to each notice of proceeding included the names of all parties, including the mother and her counsel, there was proper notice in the termination of parental rights case. In re J.T.W., 178 N.C. App. 678, 632 S.E.2d 237 (2006), rev'd on other grounds, 361 N.C. 341, 643 S.E.2d 579 (2007).

Because a county agency failed to issue a summons to a minor child or the child's guardian ad litem under G.S. 7B-1106(a)(5), the trial court lacked subject matter jurisdiction over a termination of parental rights proceeding; had the agency filed a motion to terminate under G.S. 7B-1102 in an ongoing juvenile abuse, neglect, and dependency case, the summons would not have been required, and the agency would only have been required to service notice of the motion to terminate on the parties specified in G.S. 7B-1106.1. In re I.D.G., 188 N.C. App. 629, 655 S.E.2d 858 (2008), review dismissed, 363 N.C. 127, 673 S.E.2d 133 (2009).

Waiver of Objection to Lack of Notice. - Mother in a termination of parental rights action waived any objection to improper notice by appearing with counsel at the hearing and failing to object to any lack of notice. In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006).

Department of Social Services' failure to provide timely notice of the date, time, and place of the hearing on a motion to terminate a mother's parental rights as required by G.S. 7B-1106.1(b)(5) did not require vacation of a termination order. The error was not prejudicial, and the mother's attorney waived any objection to the notice by failing to raise it. In re T.D.W., 203 N.C. App. 539, 692 S.E.2d 177 (2010).

Paternity Not Established Prior to Notice. - 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).

Applied in 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).

Cited in 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 M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).


§ 7B-1107. Failure of parent to answer or respond.

Upon the failure of a respondent parent to file written answer to the petition or written response to the motion within 30 days after service of the summons and petition or notice and motion, or within the time period established for a defendant's reply by G.S. 1A-1, Rule 4(j1) if service is by publication, the court may issue an order terminating all parental and custodial rights of that parent with respect to the juvenile; provided the court shall order a hearing on the petition or motion and may examine the petitioner or movant or others on the facts alleged in the petition or motion.

History

(1977, c. 879, s. 8; 1979, c. 525, s. 3; 1987, c. 282, s. 2; 1998-202, s. 6; 1998-229, s. 10; 1999-456, s. 60; 2000-183, s. 7.)

Editor's Note. - This section was originally enacted as G.S. 7B-1106. It has been renumbered as this section at the direction of the Revisor of Statutes.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

The absence of an answer denying any of the material allegations of the petition does not authorize the trial court to enter a "default type" order terminating the respondent's parental rights. In re Tyner, 106 N.C. App. 480, 417 S.E.2d 260 (1992).

Sufficiency of Answer. - Respondent's letter addressed to his attorney which the attorney filed with the trial court at sometime on the day of the hearing did not constitute an answer to the petition. In re Tyner, 106 N.C. App. 480, 417 S.E.2d 260 (1992).

Late Answer. - Where a mother sought to terminate the father's parental rights and the father filed a last minute response to the petition in violation of G.S. 1A-1, N.C. R. Civ. P. 12(a)(1) and contrary to G.S. 7B-1107, the trial court erred under G.S. 7B-1108(b) in failing to appoint a guardian ad litem for the child; it was improper to punish the child for the father's late response. In re J.L.S., 168 N.C. App. 721, 608 S.E.2d 823 (2005).

Cited in In re A.N.S., 239 N.C. App. 46, 767 S.E.2d 699 (2015).


§ 7B-1108. Answer or response of parent; appointment of guardian ad litem for juvenile.

  1. Any respondent may file a written answer to the petition or written response to the motion. Only a district court judge may grant an extension of time in which to answer or respond. The answer or response shall admit or deny the allegations of the petition or motion and shall set forth the name and address of the answering respondent or the respondent's attorney.
  2. If an answer or response denies any material allegation of the petition or motion, the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile, unless the petition or motion was filed by the guardian ad litem pursuant to G.S. 7B-1103, or a guardian ad litem has already been appointed pursuant to G.S. 7B-601. A licensed attorney shall be appointed to assist those guardians ad litem who are not attorneys licensed to practice in North Carolina. The appointment, duties, and payment of the guardian ad litem shall be the same as in G.S. 7B-601 and G.S. 7B-603, but in no event shall a guardian ad litem who is trained and supervised by the guardian ad litem program be appointed to any case unless the juvenile is or has been the subject of a petition for abuse, neglect, or dependency or with good cause shown the local guardian ad litem program consents to the appointment.
  3. In proceedings under this Article, the appointment of a guardian ad litem shall not be required except, as provided above, in cases in which an answer or response is filed denying material allegations, or as required under G.S. 7B-1101; but the court may, in its discretion, appoint a guardian ad litem for a juvenile, either before or after determining the existence of grounds for termination of parental rights, in order to assist the court in determining the best interests of the juvenile.
  4. If a guardian ad litem has previously been appointed for the juvenile under G.S. 7B-601, and the appointment of a guardian ad litem could also be made under this section, the guardian ad litem appointed under G.S. 7B-601, and any attorney appointed to assist that guardian, shall also represent the juvenile in all proceedings under this Article and shall have the duties and payment of a guardian ad litem appointed under this section, unless the court determines that the best interests of the juvenile require otherwise.

History

(1977, c. 879, s. 8; 1981 (Reg. Sess., 1982), c. 1331, s. 3; 1983, c. 870, s. 2; 1989 (Reg. Sess., 1990), c. 851, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2000-183, s. 8; 2003-140, s. 7; 2009-311, s. 12; 2011-295, s. 14.)

Editor's Note. - This section was originally enacted as G.S. 7B-1107. It has been renumbered as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2009-311, s. 12, effective October 1, 2009, in the section catchline, added "appointment of guardian ad litem for juvenile" at the end; in subsection (b), deleted the former last sentence of the first paragraph, which read: "The court shall conduct a special hearing after notice of not less than 10 days nor more than 30 days given by the petitioner or movant to the respondent who answered or responded, and the guardian ad litem for the juvenile to determine the issues raised by the petition and answer or motion and response," and deleted the former last paragraph, which read: "Notice of the hearing shall be deemed to have been given upon the depositing thereof in the United States mail, first-class postage prepaid, and addressed to the respondent, and guardian ad litem or their counsel of record, at the addresses appearing in the petition or motion and responsive pleading."

Session Laws 2011-295, s. 14, effective October 1, 2011, and applicable to actions filed or pending on or after that date, added the second sentence in subsection (a).

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).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

No Right to File Counterclaim. - Statutorily established procedure for termination of parental rights under former G.S. 7A-289.29 (see now this section) does not include the right to file a counterclaim. In re Peirce, 53 N.C. App. 373, 281 S.E.2d 198 (1981).

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 7B-601(a). In re J.H.K., 365 N.C. 171, 711 S.E.2d 118 (2011).

Notice When Hearing Is Continued. - Former G.S. 7A-289.29(b) (see now this section) does not prescribe the rules for notice when a hearing is continued. Herell v. Taylor, 97 N.C. App. 57, 387 S.E.2d 230 (1990).

A brief special hearing to determine the issues raised by the pleadings held just prior to the trial does not conflict with the requirements of former 7A-289.29(b) (see now this section). Herell v. Taylor, 97 N.C. App. 57, 387 S.E.2d 230 (1990).

Sufficiency of Answer. - Respondent's letter addressed to his attorney which the attorney filed with the trial court at sometime on the day of the hearing did not constitute an answer to the petition. In re Tyner, 106 N.C. App. 480, 417 S.E.2d 260 (1992).

Reversal for Failure to Appoint Guardian Ad Litem. - Where a mother sought to terminate the father's parental rights and the father filed a last minute response to the petition in violation of G.S. 1A-1, N.C. R. Civ. P. 12(a)(1) and contrary to G.S. 7B-1107, the trial court erred under G.S. 7B-1108(b) in failing to appoint a guardian ad litem for the child; it was improper to punish the child for the father's late response. In re J.L.S., 168 N.C. App. 721, 608 S.E.2d 823 (2005).

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).

Failure To Appoint Guardian Harmless Error. - 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).

Failure to Appoint Guardian Ad Litem Not Unreasonable. - In a termination of parental rights case, it was not unreasonable for the trial court to forego guardian ad litem (GAL) assistance in determining the child's best interests because a social worker testified about the child's current foster care placement, his relationship with his foster parents, and his emotional and developmental needs; the mother testified about her current living arrangement, employment, drug and alcohol abstinence, and family support system; the grandmother testified about her desire and ability to assume the child's care and custody; and the trial court's comments at the conclusion of the termination hearing clearly demonstrated that the child's best interests were carefully weighed against the evidence presented. In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016).

Child was not required to have a guardian ad litem appointed where no response to the termination petition was filed. In re A.L.Z., 256 N.C. App. 754, 808 S.E.2d 176 (2017), review denied, stay lifted, stay denied, 2018 N.C. LEXIS 260 (2018) review denied, stay lifted, stay denied, 811 S.E.2d 165, 2018 N.C. LEXIS 260 (2018).

Failure of the record to disclose guardian ad litem papers did not require reversal where the guardian ad litem was noted as present at every hearing prior to and including the termination hearing where she represented the interests of the children. In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005).

Clerical Error. - Attorney was appointed to serve as both the guardian ad litem (GAL) and attorney advocate for the child, and the failure of the district court judge to check the GAL box was merely a clerical error; the attorney was referred to as the GAL in the written adjudication and disposition order, neither the father nor his counsel expressed any concerns or raised any issues regarding the attorney's role as GAL, and it was clear from the record and transcript that the trial court did appoint the attorney as GAL. In re C.J.C., 374 N.C. 42, 839 S.E.2d 742 (2020).

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).

Preservation for Review. - Petition to terminate a mother's parental rights was not filed by a guardian ad litem, and no guardian ad litem had previously been appointed for the child; therefore, the trial court was required to appoint the child a guardian ad litem under G.S. 7B-1108(b), although the mother did not preserve this issue for appeal. 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).

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).

Mother failed to preserve the issue of whether a child should been appointed a guardian ad litem for appellate review where she had not objected at trial, and she made no argument that invocation of N.C. R. App. P. 2 was necessary to prevent manifest injustice. In re A.L.Z., 256 N.C. App. 754, 808 S.E.2d 176 (2017), review denied, stay lifted, stay denied, 2018 N.C. LEXIS 260 (2018) review denied, stay lifted, stay denied, 811 S.E.2d 165, 2018 N.C. LEXIS 260 (2018).

Applied in In re B.D., 174 N.C. App. 234, 620 S.E.2d 913 (2005), cert. denied, - N.C. - , 628 S.E.2d 245 (2006).

Cited in In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007); In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).


§ 7B-1108.1. Pretrial hearing.

  1. The court shall conduct a pretrial hearing. However, the court may combine the pretrial hearing with the adjudicatory hearing on termination in which case no separate pretrial hearing order is required. At the pretrial hearing, the court shall consider the following:
    1. Retention or release of provisional counsel.
    2. Whether a guardian ad litem should be appointed for the juvenile, if not previously appointed.
    3. Whether all summons, service of process, and notice requirements have been met.
    4. Any pretrial motions.
    5. Any issues raised by any responsive pleading, including any affirmative defenses.
    6. Any other issue which can be properly addressed as a preliminary matter.
  2. Written notice of the pretrial hearing shall be in accordance with G.S. 7B-1106 and G.S. 7B-1106.1.

History

(2009-311, s. 13.)

CASE NOTES

No Prejudice Shown. - Issue concerning the failure to conduct a pretrial hearing to determine whether the child should have been appointed a guardian ad litem was reviewable even though not raised at trial, but failed on the merits as the mother failed to show prejudice. In re A.L.Z., 256 N.C. App. 754, 808 S.E.2d 176 (2017), review denied, stay lifted, stay denied, 2018 N.C. LEXIS 260 (2018) review denied, stay lifted, stay denied, 811 S.E.2d 165, 2018 N.C. LEXIS 260 (2018).

Applied in In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016).


§ 7B-1109. Adjudicatory hearing on termination.

  1. The hearing on the termination of parental rights shall be conducted by the court sitting without a jury and shall be held in the district at such time and place as the chief district court judge shall designate, but no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time. Reporting of the hearing shall be as provided by G.S. 7A-198 for reporting civil trials.
  2. The court shall inquire whether the juvenile's parents are present at the hearing and, if so, whether they are represented by counsel. If the parents are not represented by counsel, the court shall inquire whether the parents desire counsel but are indigent. In the event that the parents desire counsel but are indigent as defined in G.S. 7A-450(a) and are unable to obtain counsel to represent them, counsel shall be appointed to represent them in accordance with rules adopted by the Office of Indigent Defense Services. The court shall grant the parents such an extension of time as is reasonable to permit their appointed counsel to prepare their defense to the termination petition or motion.
  3. The court may, upon finding that reasonable cause exists, order the juvenile to be examined by a psychiatrist, a licensed clinical psychologist, a physician, a public or private agency, or any other expert in order that the juvenile's psychological or physical condition or needs may be ascertained or, in the case of a parent whose ability to care for the juvenile is at issue, the court may order a similar examination of any parent of the juvenile.
  4. The court may for good cause shown continue the hearing for up to 90 days from the date of the initial petition in order to receive additional evidence including any reports or assessments that the court has requested, to allow the parties to conduct expeditious discovery, or to receive any other information needed in the best interests of the juvenile. Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.
  5. The court shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent. The adjudicatory order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the termination of parental rights 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.
  6. The burden in such proceedings shall be upon the petitioner or movant and all findings of fact shall be based on clear, cogent, and convincing evidence. The rules of evidence in civil cases shall apply. No husband-wife or physician-patient privilege shall be grounds for excluding any evidence regarding the existence or nonexistence of any circumstance authorizing the termination of parental rights.

History

(1977, c. 879, s. 8; 1979, c. 669, s. 1; 1981, c. 966, s. 3; (Reg. Sess., 1982), c. 1331, s. 3; 1983, c. 870, s. 2; 1989 (Reg. Sess., 1990), c. 851, s. 1; 1998-202, s. 6; 1999-456, s. 60; 2000-144, s. 19; 2000-183, s. 9; 2001-208, ss. 7, 22; 2001-487, s. 101; 2003-304, s. 2; 2005-398, s. 16; 2011-295, s. 15; 2013-129, s. 34.)

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

Editor's Note. - This section was originally enacted as G.S. 7B-1108. 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 subsection (b) by Session Laws 2013-129, s. 34, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2011-295, s. 15, effective October 1, 2011, and applicable to actions filed or pending on or after that date, added the second sentence in subsection (f).

Session Laws 2013-129, s. 34, effective October 1, 2013, deleted the former last two sentences of subsection (b), which read "In the event that the parents do not desire counsel and are present at the hearing, the court shall examine each parent and make findings of fact sufficient to show that the waivers were knowing and voluntary. This examination shall be reported as provided in G.S. 7A-198." 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 1981 constitutional law, see 60 N.C.L. Rev. 1272 (1982).

For survey of 1982 law relating to family law, see 61 N.C.L. Rev. 1155 (1983).

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. - Many of the following cases were decided prior to the enactment of this Chapter.

This Article (see now Chapter 7B, Article 11) is not unconstitutional in depriving the parties of trial by jury; under N.C. Const., Art. I, § 19, trial by jury is guaranteed only where the prerogative existed at common law or by statute at the time the Constitution was adopted, and proceedings to terminate parental rights in children were unknown at common law and did not exist by statute until 1969. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981).

The North Carolina constitutional requirement of trial by jury is not applicable to a proceeding for termination of parental rights. In re Ferguson, 50 N.C. App. 681, 274 S.E.2d 879 (1981).

Statutory Requirements Mandatory. - Terminating a father's parental rights on grounds of abandonment and neglect by abandonment erred because (1) the father did not willfully abandon the children during the six months before the petition was filed, as the father sought the children's custody during that time, and (2) findings based on a consent order granting the children's custody to others, terminating the father's child support obligation, denying the father visitation, and purporting to waive any objection to termination, erred, as the order was void as against public policy, since the statutory termination process had to be followed, any agreement to relinquish parental rights avoided this process, and the order's terms did not meet statutory requirements for a consent to adoption or relinquishment of parental rights to an agency. In re C.K.C., 263 N.C. App. 158, 822 S.E.2d 741 (2018).

Because proof of both the parent's incapability to provide proper care and supervision and the parent's lack of an alternative child care arrangement is required to terminate parental rights under subsection (a)(6), a trial court may adjudicate the nonexistence of this ground by finding the absence of either element, or by finding the petitioner's failure to prove either element by clear, cogent, and convincing evidence. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

Trial court must comply with G.S. 7B-1109(e) and G.S. 7B-1110(c) in denying a petition for the termination of parental rights; this reiterates that the trial courts must make findings of those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached, and this requirement is consistent with the trial court's duty regarding the entry of judgments following civil bench trials. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

Findings of Fact and Conclusions of Law. - By its own terms, G.S. 7B-1109(e) applies equally to instances in which the trial court adjudicates the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111; consequently, G.S. 7B-1109(e) places the same duty on the trial court to find the facts specially and state separately its conclusions of law thereon, regardless of whether the court is granting or denying a petition to terminate parental rights. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (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).

Trial court's finding that the essential underlying issues of the neglect adjudication that concerned the father were his abuse of alcohol and illegal substances as well as housing and employment instability was supported by clear, cogent, and convincing evidence because although the direct issues that led to the adjudication of neglect primarily related to the mother, the trial court was permitted to consider indirect issues which contributed to the child's neglect and removal. In re O.W.D.A., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of a mother's parental rights was inappropriate because all findings of fact had to be based on clear, cogent, and convincing evidence. However, the factual findings which the trial court made were insufficient to support the termination of the mother's parental rights under any of the statutory grounds considered. In re K.H., - N.C. - , - S.E.2d - (Nov. 20, 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).

Mother's parental rights were properly terminated because there was a pattern of neglect due to housing instability, substance abuse, leaving the juveniles with inappropriate caretakers, and domestic violence; the mother and the children had resided at a homeless shelter, and after her incarceration for drug violations, she had failed to make proper arrangements for the children's care. In re N.B., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Father's parental rights were properly terminated because he did not provide support for the child, and although the father did send a letter in which he asked for the child's forgiveness, the letter in question had been his first contact with the child after her entry into state custody; as a result, the record adequately supported the trial court's finding concerning the inconsistency of the father's contacts. In re N.B., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Voluntary Dismissal of First Petition. - Fact that county department of social services had dismissed a prior petition for termination of 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).

The termination of parental rights statute provides for a two-stage termination proceeding: Former G.S. 7A-289.30 governs the adjudication stage, while former G.S. 7A-289.31 governs the disposition stage of a termination proceeding. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984); In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

Former G.S. 7A-289.30 and former G.S. 7A-289.31, when read together, mean that in the adjudication stage, the petitioner must prove clearly, cogently, and convincingly the existence of one or more of the grounds for termination listed in former G.S. 7A-289.32. Once the petitioner has proven this ground by this standard, it has met its burden within the statutory scheme of former G.S. 7A-289.30 and 7A-289.31. The petitioner having met his burden of proof at the adjudication stage, the court then moves on to the disposition stage, where the court's decision to terminate parental rights is discretionary. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

In a proceeding to terminate parental rights on the grounds of abuse, a prior adjudication of abuse was binding upon the court. It still had to be shown, however, by clear, cogent, and convincing evidence, that the grounds for termination, i.e., abuse or the probability of its repetition, existed at the time of the termination proceeding. The court then had to determine whether termination was in the child's best interest. In re Alleghany County Dep't of Social Servs. v. Reber, 75 N.C. App. 467, 331 S.E.2d 256 (1985), aff'd, 315 N.C. 382, 337 S.E.2d 851 (1986).

At the adjudication stage, petitioner is required to prove the existence of grounds for termination listed in former G.S. 7A-289.32 by clear, cogent and convincing evidence, pursuant to former G.S. 7A-289.30(e), while at the disposition stage, the court's decision as to whether to terminate parental rights is discretionary. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

Proceeding for termination of parental rights requires the trial court to conduct a two part inquiry; subsection (e) of this section directs that the court first shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111, which authorize the termination of parental rights of the respondent. Disposition is governed by G.S. 7B-1110, which provides in relevant part that, upon a finding that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated under G.S. 7B-1111(a). In re Baker, 158 N.C. App. 491, 581 S.E.2d 144 (2003).

Adjudication and disposition are the two phases required by subsection (e) of this section in a termination of parental rights proceeding, but there exists no requirement that the two phases be conducted during separate hearings. At the adjudication phase, the petitioner has the burden of proving there is clear, cogent, and convincing evidence supporting at least one statutory ground under G.S. 7B-1111 for termination, and at the disposition phase, the determination is whether it is in the best interests of the child to terminate parental rights. In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003).

During the initial adjudication phase of the trial, the petitioner seeking termination must show by clear, cogent, and convincing evidence that grounds exist to terminate parental rights and a finding of any one of those grounds is sufficient to support termination of parental rights. If the petitioner succeeds in establishing the existence of any one of the statutory grounds, the trial court moves to the second, or dispositional, stage, where it determines whether it is in the best interests of the child to terminate the parental rights; so long as the court applies the different evidentiary standards at each of the two stages, there is no requirement that the stages be conducted at two separate hearings. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

Timeline of Termination Proceedings. - Allowing the mother to stay the termination proceedings pending an appeal of a custody review order would have precluded compliance with the termination timeline mandated under G.S. 7B-907 (repealed, see now G.S. 7B-906.1), G.S. 7B-1109, and G.S. 7B-1110, and this would have been improper. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Timeliness of Hearing. - Where the termination of parental rights hearing was initially set for less than one month outside that 90-day window, by agreement of the parties, the hearing was continued, and took place within the 90-day continuance window, and there was no showing of prejudice, there was no due process violation. In re J.T.W., 178 N.C. App. 678, 632 S.E.2d 237 (2006), rev'd on other grounds, 361 N.C. 341, 643 S.E.2d 579 (2007).

Failure to conduct a termination hearing within 90 days after petition was filed did not require reversal because the father was not prejudiced by the delay; the Department of Social Services stated that the long delay was the result of it's inability to serve process on the father and the mother because of an incorrect address. In re R.R., 180 N.C. App. 628, 638 S.E.2d 502 (2006).

Failure to hold a termination of parental rights hearing within 90 days did not require reversal because the oldest child's detailed plan showed that the delay was due to the extraordinary efforts by the trial court to allow the mother to demonstrate an ability to parent the three younger children by monitoring the mother's performance in parenting the older child; rather than prejudicing the mother, the efforts inured to the mother's benefit, affording the mother every possible opportunity to be reunited with the children. In re C.M., 183 N.C. App. 398, 644 S.E.2d 630 (2007).

Time limitations in the Juvenile Code were not jurisdictional in termination cases and did not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay; the mother made no serious effort to establish prejudice, but rather argued that the late filing resulted in prejudice per se, which was a contention consistently rejected, and in any event, the record revealed no violation of G.S. 7B-1109(a) under circumstances in which the continuances of the termination hearing were because of the need to appoint new counsel for the mother, to allow time for responsive pleadings, to allow the mother discovery, and to allow sufficient time to fully hear the case. In re D.J.G., 183 N.C. App. 137, 643 S.E.2d 672 (2007).

Holding of a hearing on a termination of parental rights petition 133 days after the petition was filed was not fatal, even though G.S. 7B-1109(a) required that the hearing commence within 90 days, as the father failed to show prejudice resulting from the delay. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

Although an adjudication hearing was held well beyond the 90-day period under G.S. 7B-1109(a), a mother was not prejudiced as additional visits with the child or a custody hearing would not have changed the ultimate outcome of the termination of parental rights proceedings. In re A.R.D., 204 N.C. App. 500, 694 S.E.2d 508, aff'd., 364 N.C. 596, 704 S.E.2d 510, 2010 N.C. LEXIS 1075 (2010).

In a termination of parental rights case where the trial court failed to adhere to the statutory time for holding a hearing, the father should have filed a petition for writ of mandamus but offered no explanation for his failure to do so at any point during the 33 months between the filing of the termination petition and the termination hearing. Instead, the father sat on his rights and allowed the delay to continue without objection. In re C.R.L., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Standard of Proof. - Although this section 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, G.S. 7B-807 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. In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000).

During adjudication, the North Carolina Department of Social Services has the burden of proving by clear, cogent, and convincing evidence that one or more of the statutory grounds set forth in G.S. 7B-1111 for termination exists. In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 237 (2002).

Father's neglect of his minor child under G.S. 7B-1111 was shown at the adjudication stage by clear, cogent, and convincing evidence in that the father did not provide any support for the child, did not communicate with the child, and visited the child only a few times. In re Yocum, 158 N.C. App. 198, 580 S.E.2d 399 (2003).

Trial court's finding under G.S. 7B-1111(a)(3) that a mother failed to contribute to the cost of her children's foster care, despite being physically and financially able to do so, was not supported by clear, cogent and convincing evidence, as required by G.S. 7B-1109(f); the only evidence presented to the trial court on this subject established that she had been employed at various times since 1999 and did not address whether she was employed during the six months preceding the filing of the termination petition or whether she had the financial ability to contribute to the children's support during that time. In re Faircloth, 161 N.C. App. 523, 588 S.E.2d 561 (2003).

Trial court properly identified the standard of proof under G.S. 7B-1109(f) by using a clear and cogent standard of proof because the father failed to show he was prejudiced since he did not challenge any of the trial court's factual findings. In re M.D., 200 N.C. App. 35, 682 S.E.2d 780 (2009).

While it would have been preferable for a trial court to have plainly stated its standard of proof for all of the findings of fact, based upon the language in one finding of fact, the lack of evidence of an erroneous standard, and the oral rendition stating the appropriate standard, the trial court used the correct standard of proof. 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).

Burden of Proof. - Although the burden was on family relatives to show that a mother lacked a suitable alternative child care arrangement, the relatives presented no evidence to meet their burden. Therefore, because the trial court failed to make the required finding and no evidence was presented that would have allowed it to make such a finding, reversal of the portion of the trial court's order relying upon the ground of dependency for termination was appropriate. In re K.C.T., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Exercise of Discretion. - Former G.S. 7A-289.30 and 7A-289.31 provide that the court may exercise its discretion in the dispositional stage only after the court has found that there is clear and convincing evidence of one of the statutory grounds for terminating parental rights during the adjudicatory stage, and no discretion may be exercised during the adjudicatory stage. In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994).

Separate Hearings Not Required. - Although the court is required to apply different evidentiary standards at each of the two stages of adjudication and disposition, there is no requirement that the stages be conducted at two separate hearings. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986); In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

Bifurcation of Hearing Not Required. - Hearing transcript showed the trial court heard dispositional evidence from a social worker and the guardian ad litem (GAL) and received the GAL's dispositional report into evidence; although the dispositional evidence was intertwined with adjudicatory evidence, a trial court was not required to bifurcate the hearing into two distinct stages. In re S.M.M., 374 N.C. 911, 845 S.E.2d 8 (2020).

Failure to Record Testimony. - Where respondent argued that he must receive a new hearing because children's testimony, which was taken in chambers with all counsel present, was not recorded, respondent did not argue any error in the unrecorded testimony itself and failed to show prejudice. In re Nolen, 117 N.C. App. 693, 453 S.E.2d 220 (1995).

Taking of Evidence Needs to Include Oral Testimony. - Although a trial court considering a termination of parental rights petition can consider written reports, prior court order, and oral arguments by the attorneys involved in the case, some oral testimony needs to be taken by the court. In re A.M., 192 N.C. App. 538, 665 S.E.2d 534 (2008).

Denial of Continuance Proper. - 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).

Denying a mother's second motion to continue a termination hearing in order to obtain her older son's testimony was not an abuse of discretion as she was granted a month-long continuance for that purpose after the initial hearing, and she made no showing that extraordinary circumstances required a second continuance, provided only a vague description of the expected testimony, and did not tender an offer of proof to demonstrate significance. In re A.L.S., 374 N.C. 515, 843 S.E.2d 89 (2020).

Father failed to demonstrate to the trial court that good cause existed for the continuance of the termination of parental rights hearing to a juncture beyond 90 days from the date of the initial petition because his procrastination in addressing his court-ordered obligation to report to the counseling center for the essential evaluation directly resulted in the shortness of time for the parties involved in the hearing to have access to the psychosexual evaluation of the father. In re S.M., - N.C. - , - S.E.2d - (Nov. 20, 2020).

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).

Waiver of Counsel Due to Inaction Improper. - The General Assembly did not intend to allow for waiver of court appointed counsel due to inaction prior to the hearing. If a parent is present at the hearing and does not waive representation, counsel shall be appointed. Little v. Little, 127 N.C. App. 191, 487 S.E.2d 823 (1997).

Ruling by the trial court that parents right to counsel was waived by inaction prior to the termination hearing was prejudicial error. Little v. Little, 127 N.C. App. 191, 487 S.E.2d 823 (1997).

Mother who was facing termination of parental rights had the right to be represented by counsel; the trial court erred when it denied the mother's request for court-appointed counsel, even though the mother (1) had not answered a petition that the department of social services filed, (2) did not attend a pretrial conference that the trial court scheduled, and (3) made her request for counsel on the day the case was set for a hearing. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22 (2004), cert. denied, 359 N.C. 632, 616 S.E.2d 230 (2005).

Removal of Counsel. - In a termination of parental rights proceeding where the father was alleged to have abused and neglected the children, the trial court did not err in not removing the father's attorney from the case on the basis that counsel failed to schedule a new hearing in the abuse and neglect hearing, as the father did not show prejudice arising from there being no rehearing in the abuse and neglect proceeding prior to the termination hearing. In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65 (2002).

Failure to Sign Termination Order Within 30 Days. - When a trial court did not sign a written order terminating a father's parental rights within 30 days of the hearing resulting in that order, the trial court's statutory violation did not require that its order be vacated, as no authority compelled such a result, and, on the facts, that was not an appropriate remedy for the statutory violation as the father's neglect and abandonment of the child were proved by clear, cogent, and convincing evidence, and the father did not show he suffered any prejudice from the trial court's delay. 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).

Mother was not entitled to reversal of an order terminating her parental rights despite the fact that it was entered more than 30 days after the hearing because she failed to show that she suffered prejudice as a result of the late order. 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).

Extraordinary delay of almost one year after the termination hearing in entering the order terminating a mother's parental rights pursuant to G.S. 7B-1109(e), G.S. 7B-1110(a) was sufficient to show prejudice to warrant reversal and a new hearing. In re T.W., 173 N.C. App. 153, 617 S.E.2d 702 (2005).

Trial court's entry of an order 83 days following the termination of parental rights hearing did not constitute prejudice per se, requiring a new hearing; the mother failed to articulate any prejudice she suffered. In re S.N.H., 177 N.C. App. 82, 627 S.E.2d 510 (2006).

Trial court violated the statutes by entering its termination order roughly six months after the adjudicatory and dispositional hearing. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).

Delay in Entering Order Requires Prejudice for Reversal. - Trial court erred by not entering its termination order within the statutory time frame, but reversal was not required since the parents did not show how they were prejudiced by the delay. In re D.R., 172 N.C. App. 300, 616 S.E.2d 300 (2005).

Trial court did not lack subject matter jurisdiction over a termination of parental rights hearing because the trial court did not comply with the time limits as set forth in G.S. 7B-1109(a) and (d) as: (1) each continuance granted by the trial court was necessary in order for all the essential parties to be present and to provide testimony and evidence at the termination hearing; (2) at no time did mother object to any delay or continuance; and (3) the mother failed to provide any argument as to how she, or the children, were specifically prejudiced by the delay. In re W.L.M., 181 N.C. App. 518, 640 S.E.2d 439 (2007).

Reversal of a termination of parental rights order was not warranted under G.S. 7B-1109(a) due to the delay between the petition and the hearing, because the mother failed to meet the burden to show prejudice caused by the delay in scheduling the hearing; the delay inured to the mother's benefit since it gave the mother more time to address housing, employment, individual counseling, and substance abuse issues. In re C.T., 182 N.C. App. 472, 643 S.E.2d 23 (2007).

Delay in Entering Termination Order. - Seven month delay between a termination hearing and the trial court's entry of its termination order ran counter to the legislative intent in enacting the 30-day requirement of G.S. 7B-1109(e) and G.S. 7B-1110(a), and prejudiced the mother, who was prevented from filing an appeal until seven months after the hearing; pending the appellate court's determination of the appeal, the child remained in the department's custody, and subsequent court proceedings involving the child were limited to those "temporary" orders authorized by G.S. 7B-1113. In re T.L.T., 170 N.C. App. 430, 612 S.E.2d 436 (2005).

Order terminating a father's parental rights was reversed, where the trial court entered its order more than five months after the conclusion of the termination hearing; the late entry of the written order was a clear and egregious violation of G.S. 7B-1109(e) and G.S. 7B-1110(a). Owen v. Keeter (In re C.L.K.), 182 N.C. App. 600, 643 S.E.2d 458 (2007).

When a trial court failed to state ground for granting a youth and family services' continuance in a petition to terminate a mother's parental rights without stating the grounds as required by G.S. 7B-1109(d), and there was a delay of almost 11 months beyond the 90-day deadline of G.S. 7B-1109(a) before a hearing was held on the petition, the delay was egregious because the services' termination of the mother's visitations with the children constituted a de facto termination of the mother's parental rights 14 months prior to the matter actually coming before the trial court; for 14 months the mother was denied the company and familial relationship with her children solely through the inaction of the services and the trial court, and thus showed that she was prejudiced by the delay. In re J.Z.M., 184 N.C. App. 474, 646 S.E.2d 631 (2007), rev'd 362 N.C. 167, 655 S.E.2d 832 (2008), In re J.Z.M., 184 N.C. App. 474, 646 S.E.2d 631 (2007).

While a mother claimed that she was prejudiced by the delay in the trial court's filing of the written adjudication order, because she offered no evidence in support of this bare assertion, the state presented clear, cogent, and convincing evidence of her extreme neglect of her two minor children, such supported the termination of her parental rights; moreover, as the trial court announced its adjudication of neglect and its decision to terminate the mother's parental rights in open court, the delay in reducing the trial court's order to writing did not prejudice the mother and, thus, did not warrant reversal of the termination order. In re J.A.P., 189 N.C. App. 683, 659 S.E.2d 14 (2008).

When a trial court took a best interests determination under advisement at the end of a termination hearing, the trial court abused its discretion in denying the mother's motion to re-open the evidence because, at the time of the mother's motion, the court had not yet made the best interests determination required to terminate the mother's parental rights G.S. 7B-1109 and G.S. 7B-1110; the mother filed her motion on April 12, 2012, the trial court heard and orally denied the motion on April 17, 2012, and the order terminating parental rights was entered on April 18, 2012. In re B.S.O., 225 N.C. App. 541, 740 S.E.2d 483 (2013).

Trial court violated the statute because its termination of parental rights order was not entered until approximately nine months after the completion of the adjudicatory and disposition hearing. In re L.L.O., 252 N.C. App. 447, 799 S.E.2d 59 (2017).

Delay in Hearing Due to Request for Counsel. - The trial court did not err by holding a hearing on the petition to terminate the mother's parental rights outside of the initial 90-day time requirement where the other's request for appointment of counsel led to the delay. In re S.N.H., 177 N.C. App. 82, 627 S.E.2d 510 (2006).

Where the trial court did not reduce the parental termination to writing until seven months after the termination hearing in violation of the 30-day requirement of G.S. 7B-1109(e), -1110(a), -1111(a); all parties were prejudiced, as the mother and child lost time together, the foster parents were in a state of flux, and the adoptive parents were unable to complete their family plan. In re D.S., 177 N.C. App. 136, 628 S.E.2d 31 (2006).

Untimely termination of parental rights hearing did not require dismissal of the termination petition because the father's own motion for a continuance added 68 days to the trial court's original error and the father was not prejudiced thereby. In re D.J.D., 171 N.C. App. 230, 615 S.E.2d 26 (2005).

Trial court's failure to timely enter its adjudication and disposition order in a termination of parental rights action did not warrant reversal because that would only further delay the determination regarding the children's custody in opposition to the intent of G.S. 7B-1109(e) and G.S. 7B-1110(a). In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005).

Mother was awarded a new termination of parental rights trial where the written order was not entered until five months after the trial court orally announced its decision; this violated G.S. 7B-1109 and G.S. 7B-1110, which required entry to be made within 30 days, and prejudice was shown, as the delay was unnecessary, closure was not obtained, and records and transcripts were either misplaced or irretrievable. In re C.J.B., 171 N.C. App. 132, 614 S.E.2d 368 (2005).

The petitioner seeking termination of parental rights bears the burden of showing by clear, cogent and convincing evidence that such neglect exists at the time of the termination proceeding. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984); Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Finding of Neglect. - Trial court properly terminated the father's parental rights on the ground that the father neglected the father's 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).

Order terminating mother's parental rights to her four minor children was proper because the children were previously adjudicated neglected, there was a probability of repetition of neglect if returned to the mother, four to five trial placements with the mother had failed, the mother had a history of failing to show a positive response to counseling and educational programs, the mother left a stable job and housing to move to another state where she did not have employment or independent housing, and she had been unable to cope with the pressure of caring for the children at the same time, with such findings being sufficient to establish neglect under G. S. 7B-1111(a)(1). In re L.O.K., 174 N.C. App. 426, 621 S.E.2d 236 (2005).

Termination of a father's parental rights based on the probability of repetition of neglect was supported by substantial evidence that showed that the father made no effort to visit his son in the five months prior to termination hearing, that the father met with a parenting class instructor only once even though parenting classes were part of case plan, and that the father held only occasional part-time jobs. In re J.E.M., 221 N.C. App. 361, 727 S.E.2d 398 (2012).

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).

Ground of neglect for termination of a father's parental rights existed because the 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 have occurred in the future if the child were to have been placed with the father. In re N.P., 374 N.C. 61, 839 S.E.2d 801 (2020).

Trial court properly terminated a father's parental rights based on neglect as there was no requirement that he be responsible for the prior adjudication of neglect, he made minimal efforts to show interest in the child while incarcerated, and the record evidence showed that the father was responsible for his failure to satisfy his case plan's requirements. Moreover, the evidence supported the trial court's findings that the child was likely to be neglected if returned to the father's care, the father was responsible for the lack of visitation, and his convictions and sentence were drug-related. In re S.D., 374 N.C. 67, 839 S.E.2d 315 (2020).

Findings Not In Error. - In light of the frequent interchangeable usage of the terms "ground" and "grounds" in legal authorities to refer to a singular basis for a decision, the trial court did not harbor a mistaken belief that multiple statutory grounds for termination were necessary in order to terminate a father's parental rights; by itself, the trial court's use of the phrase "necessary grounds," which pluralized the term "ground," did not connote the commission of error by the trial court. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

Findings Insufficient. - Trial court's evidentiary findings did not meet the requirements of G.S. 1A-1, N.C. R. Civ. P. 52(a)(1), as applied to adjudicatory orders under G.S. 7B-1109(e) and G.S. 7B-1110(c), because the trial court found none of the ultimate facts required to support an adjudication of the existence or nonexistence of the circumstances in G.S. 7B-1111. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

The proper evidentiary standard of proof in termination of parental rights proceedings is clear and convincing evidence. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

"Clear and convincing" and "clear, cogent, and convincing" describe the same evidentiary standard. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

The clear, cogent and convincing standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Statement of Clear and Convincing Evidence Required. - When construing G.S. 7B-807 and this section together to determine legislative intent, under subsection (f) of this section, the trial court is required 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).

Under former G.S. 7A-289.32, where the trial court failed to state that its findings in the adjudicatory stage of a proceeding to terminate parental rights were made by "clear, cogent and convincing evidence," the Court of Appeals could not determine if the correct standard of proof had been applied and, therefore, reversed the trial court's order terminating the parents' rights. In re Lambert-Stowers, 146 N.C. App. 438, 552 S.E.2d 278 (2001).

Court May Consider Previous Adjudication. - In determining whether there is neglect which authorizes the termination of parental rights, the trial court is allowed to consider a previous adjudication of neglect. It must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. In re Stewart, 82 N.C. App. 651, 347 S.E.2d 495 (1986).

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 do not apply. Therefore, the trial court could properly consider written psychological reports in determining, on a motion brought by parents whose parental rights had been terminated under former G.S. 7A-289.34, whether the needs of the children would best be served by modification of its previous orders concerning visitation. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985).

Although psychological evaluations in termination case were not court-ordered, they were relevant and admissible. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 676, 375 S.E.2d 676 (1989).

Standard for Review on Appeal. - On appeal, when a trial court's order is reviewed as not being supported by the evidence, the appellate court looks to see whether there is clear, cogent, and convincing competent evidence to support the findings. If there is such competent evidence, the findings are binding upon the court on appeal. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982).

Standard of Review. - The standard of review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law; courts then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child. Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered during the dispositional stage. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

Effect of Findings on Appeal. - Factual findings must be based on clear, cogent, and convincing evidence. Such properly supported findings are binding on appeal, even though there may be evidence to the contrary. Furthermore, findings of fact not excepted to are deemed to be supported by competent evidence and are conclusive on appeal. In re Tyson, 76 N.C. App. 411, 333 S.E.2d 554 (1985); Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Appellate court found that remand for further action was necessary because the findings of fact and conclusions of law in support of the trial court's ruling terminating parental rights were insufficient for appellate review. In re O.J.R., 239 N.C. App. 329, 769 S.E.2d 631 (2015).

Limited findings of fact and the single conclusion of law included in the trial court's termination order did not permit meaningful appellate review and, therefore, were insufficient to support its decision denying a mother's petition to terminate a father's parental rights; the trial court neglected to find the ultimate facts that would be dispositive of any of the termination grounds, and its general conclusion of law offered no analysis of the legal standards applied to the mother's claims. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

Failure to Make Reasonable Progress. - Record held to demonstrate a failure on the part of parents to make reasonable progress toward improving home conditions during the period in which parents' children were in foster care, despite the fact that they showed a willingness to provide for the children during part of the time at issue. Herell v. Taylor, 97 N.C. App. 57, 387 S.E.2d 230 (1990).

The trial court's findings were insufficient to terminate the mother's rights since it did not address whether the mother could pay support, address the concerns leading to the child's removal, or list the unmet conditions. In re Locklear, 151 N.C. App. 573, 566 S.E.2d 165 (2002).

Termination of the mother's parental rights based on the ground of failure to make reasonable progress was proper because she had not maintained stable employment for a minimum of six months; she failed to obtain stable housing for at least six months as her frequent moves constituted evidence of housing instability, and she was days shy of having resided at her current residence for the designated six-month period of time; and she failed to complete the recommended treatment needed to fully address the core issues of substance abuse and domestic violence which had played the largest roles in the children's removal. In re I.G.C., 373 N.C. 201, 835 S.E.2d 432 (2019).

Termination of the mother's parental rights was proper based on her willful failure to make reasonable progress because, inter alia, the mother voluntarily placed the children in the custody of the county department of social services so that the father could live with her; and she failed to protect her children by allowing the father, who had assaulted her and two of the children, to return to the family home. In re A.R.A., 373 N.C. 190, 835 S.E.2d 417 (2019).

Late Entry of Termination Order Held Reversible Error. - Trial court reversibly erred in failing to enter an order terminating a mother's parental rights over her children until over 180 days after the termination hearing, in violation of G.S. 7B-1109(e) and G.S. 7B-1110(a), because the long delay was highly prejudicial to the mother, the children, and the foster parent. In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424 (2005).

Termination Order Vacated. - Order terminating a father's parental rights was vacated because the trial court failed to make specific findings of fact or to state in its conclusions of law that the father's actions were willful, and, thus the findings did not conclusively establish grounds for termination of parental rights pursuant to G.S. 7B-1111(a); without an identified basis for the adjudication under G.S. 7B-1109(e), effective review of the termination order was precluded. In re T.M.H., 186 N.C. App. 451, 652 S.E.2d 1 (2007), review denied, stay denied, 362 N.C. 87, 657 S.E.2d 31 (2007.

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).

Termination Held Warranted. - Where a jailed father asked not to be taken to court to appear at a parental rights termination hearing, it showed that the child was not a priority and that the child was a neglected and abandoned; termination of the father's parental rights was therefore in the child's best interest. Whittington v. Hendren (In re Hendren), 156 N.C. App. 364, 576 S.E.2d 372 (2003).

Termination of the mother's parental rights was in the son's best interest as he had a strong bond with his current foster family and was forming a long-term attachment to them; he was receiving structure and stability from the foster family; he needed permanence and continued therapy; and the mother was no longer participating in his therapy and had not called to inquire about his welfare. In re A.R.A., 373 N.C. 190, 835 S.E.2d 417 (2019).

Trial court did not abuse its discretion in concluding that it was in the children's best interests to terminate a mother's parental rights because the trial court thoroughly considered the children's developmental challenges and their likelihood of adoption based on the children's then placement and potential future adoptive parents. Furthermore, there was testimony that the children were thriving and showing great improvement developmentally in their placements. In re J.H., 373 N.C. 264, 837 S.E.2d 847 (2020).

Findings fully supported the trial court's conclusion that grounds existed to terminate a mother's parental rights based upon her willful failure to pay a reasonable portion of the cost of care during the children's placement in county department of social services custody because the mother was on notice of her failure to pay something towards the cost of care for her children; the trial court repeatedly found in its permanency planning orders that none of the parents were paying child support. In re S.E., - N.C. - , 838 S.E.2d 328 (2020).

Evidence Held Insufficient. - Evidence held insufficient to support the grounds for termination of parental rights. In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997).

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).

Order terminating a father's parental rights was improper because it did not identify any G.S. 7B-1111(a) grounds for termination and did not indicate the evidentiary standard under which the trial court made its adjudicatory findings of fact; without an identified basis for adjudication, effective review of the termination order was precluded, and without a finding of willfulness, there was insufficient basis for a finding of abandonment, and the father's incarceration alone was insufficient to support the termination order. Bolick v. Brizendine (In re D.R.B.), 182 N.C. App. 733, 643 S.E.2d 77 (2007).

Applied in In re Johnston, 151 N.C. App. 728, 567 S.E.2d 219 (2002); In re T.C.B., 166 N.C. App. 482, 602 S.E.2d 17 (2004).

Cited in In re McLemore, 139 N.C. App. 426, 533 S.E.2d 508 (2000); In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001); In re Hardesty, 150 N.C. App. 380, 563 S.E.2d 79 (2002); In re L.D.B., 168 N.C. App. 206, 617 S.E.2d 288 (2005); In re V.L.B., 168 N.C. App. 679, 608 S.E.2d 787 (2005), cert denied, - N.C. - , 614 S.E.2d 924 (2005); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005); In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re A.C.F., 176 N.C. App. 520, 626 S.E.2d 729 (2006); A Child's Hope, LLC v. Doe, 178 N.C. App. 96, 630 S.E.2d 673 (2006); In re S.N., 180 N.C. App. 169, 636 S.E.2d 316 (2006); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007); In re J.S.B., 183 N.C. App. 192, 644 S.E.2d 580 (2007); In re I.J., 186 N.C. App. 298, 650 S.E.2d 671 (2007); In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007); In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007); 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 T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008); In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008), review denied, 363 N.C. 581, 681 S.E.2d 783 (2009); In re N.B., 195 N.C. App. 113, 670 S.E.2d 923 (2009); In re S.R.G., 195 N.C. App. 79, 671 S.E.2d 47 (2009); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016); In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017).


§ 7B-1110. Determination of best interests of the juvenile.

  1. After an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the best interests of the juvenile. In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
    1. The age of the juvenile.
    2. The likelihood of adoption of the juvenile.
    3. Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
    4. The bond between the juvenile and the parent.
    5. The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
    6. Any relevant consideration.
  2. Should the court conclude that, irrespective of the existence of one or more circumstances authorizing termination of parental rights, the best interests of the juvenile require that rights should not be terminated, the court shall dismiss the petition or deny the motion, but only after setting forth the facts and conclusions upon which the dismissal or denial is based.
  3. Should the court determine that circumstances authorizing termination of parental rights do not exist, the court shall dismiss the petition or deny the motion, making appropriate findings of fact and conclusions.
  4. Counsel for the petitioner or movant shall serve a copy of the termination of parental rights order upon the guardian ad litem for the juvenile, if any, and upon the juvenile if the juvenile is 12 years of age or older.
  5. The court may tax the cost of the proceeding to any party.

Any order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the termination of parental rights 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

(1977, c. 879, s. 8; 1981 (Reg. Sess., 1982), c. 1131, s. 1; 1983, c. 581, s. 3; c. 607, s. 3; 1998-202, s. 6; 1999-456, s. 60; 2000-183, s. 10; 2001-208, s. 23; 2001-487, s. 101; 2005-398, s. 17; 2011-295, s. 16.)

Editor's Note. - This section was originally enacted as G.S. 7B-1109. It has been renumbered as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-295, s. 16, effective October 1, 2011, and applicable to actions filed or pending on or after that date, in the introductory paragraph of subsection (a), substituted the last two sentences for the former last sentence, which read: "In making this determination, the court shall consider the following."

Legal Periodicals. - For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For article on rights and interest of parent, child, family and state, see 4 Campbell L. Rev. 85 (1981).

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 survey of 1982 law relating to family law, see 61 N.C.L. Rev. 1155 (1983).

For 1984 survey, "Termination of Parental Rights: Putting Love in Its Place," see 63 N.C.L. Rev. 1177 (1985).

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

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Statutory Requirements Mandatory. - Terminating a father's parental rights on grounds of abandonment and neglect by abandonment erred because (1) the father did not willfully abandon the children during the six months before the petition was filed, as the father sought the children's custody during that time, and (2) findings based on a consent order granting the children's custody to others, terminating the father's child support obligation, denying the father visitation, and purporting to waive any objection to termination, erred, as the order was void as against public policy, since the statutory termination process had to be followed, any agreement to relinquish parental rights avoided this process, and the order's terms did not meet statutory requirements for a consent to adoption or relinquishment of parental rights to an agency. In re C.K.C., 263 N.C. App. 158, 822 S.E.2d 741 (2018).

Trial court must comply with G.S. 7B-1109(e) and G.S. 7B-1110(c) in denying a petition for the termination of parental rights; this reiterates that the trial courts must make findings of those material and ultimate facts from which it can be determined whether the findings are supported by the evidence and whether they support the conclusions of law reached, and this requirement is consistent with the trial court's duty regarding the entry of judgments following civil bench trials. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

The termination of parental rights statute provides for a two-stage termination proceeding: G.S. 7A-289.30 [see now G.S. 7B-1109] governs the adjudication stage, while this section governs the disposition stage of a termination proceeding. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

In a proceeding to terminate parental rights on the grounds of abuse, a prior adjudication of abuse was binding upon the court. It still had to be shown, however, by clear, cogent, and convincing evidence, that the grounds for termination, i.e., abuse or the probability of its repetition, existed at the time of the termination proceeding. The court then had to determine whether termination was in the child's best interest. In re Alleghany County Dep't of Social Servs. v. Reber, 75 N.C. App. 467, 331 S.E.2d 256 (1985), aff'd, 315 N.C. 382, 337 S.E.2d 851 (1986).

In a department of social services' petition to terminate a father's parental rights, the trial court found the department met its burden of proving by clear, cogent, and convincing evidence at least one of the grounds in G.S.7B-1111, and then proceeded to the dispositional phase to consider whether termination was in the children's best interests, under G.S. 7B-1110(a). In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003).

Proceeding for termination of parental rights requires the trial court to conduct a two part inquiry; G.S. 7B-1109(e) directs that the court first shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111, which authorize the termination of parental rights of the respondent. Disposition is governed by this section, which provides in relevant part that upon a finding that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated under G.S. 7B-1111(a). In re Baker, 158 N.C. App. 491, 581 S.E.2d 144 (2003).

During the initial adjudication phase of the trial, the petitioner seeking termination must show by clear, cogent, and convincing evidence that grounds exist to terminate parental rights and a finding of any one of those grounds is sufficient to support termination of parental rights. If the petitioner succeeds in establishing the existence of any one of the statutory grounds, the trial court moves to the second, or dispositional, stage, where it determines whether it is in the best interests of the child to terminate the parental rights; so long as the court applies the different evidentiary standards at each of the two stages, there is no requirement that the stages be conducted at two separate hearings. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

If a petitioner meets its burden of proving at least one ground for termination of parental rights exists under G.S. 7B-1111(a), then a trial court proceeds to the dispositional phase and determines whether termination of parental rights is in the best interest of the child. In re D.M.W., 173 N.C. App. 679, 619 S.E.2d 910 (2005), cert. granted, 360 N.C. 364, 629 S.E.2d 850, rev'd, 360 N.C. 583, 635 S.E.2d 50 (2006).

Obligation of Trial Court to Consider Best Interests. - Having adjudicated the father's willful abandonment of the child, the trial court was obliged to determine whether it was in the child's best interests to terminate the father's parental rights, and to do so without regard to any competing interest of him. In re K.N.K., 374 N.C. 50, 839 S.E.2d 735 (2020).

Because the trial court found that a mother proved by clear, cogent, and convincing evidence that at least one ground to terminate the father's parental rights existed - that the father willfully abandoned the children - the trial court was therefore required to make dispositional findings about whether termination was in the children's best interests. In re J.D.C.H., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Timeline of termination proceedings. - Allowing the mother to stay the termination proceedings pending an appeal of a custody review order would have precluded compliance with the termination timeline mandated under G.S. 7B-907 (repealed, see now G.S. 7B-906.1), G.S. 7B-1109, and G.S. 7B-1110, and this would have been improper. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Adjudication order in a neglect and dependency proceeding was essential to subject matter jurisdiction in a termination of parental rights action under G.S. 7B-1110(a) and a jurisdiction defect in the summonses in the neglect and depending proceeding required vacation of the order terminating a mother's parental rights. In re K.J.L., 194 N.C. App. 386, 670 S.E.2d 269 (2008).

Exercise of Discretion. - Former G.S. 7A-289.31 (see now this section) and the predecessor to G.S. 7B-1109 provide that the court may exercise its discretion in the dispositional stage only after the court has found that there is clear and convincing evidence of one of the statutory grounds for terminating parental rights during the adjudicatory stage, and no discretion may be exercised during the adjudicatory stage. In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994).

Required Findings of Fact. - In proceedings to terminate a mother's parental rights, a trial court's order concluding that termination was in the child's best interests did not comply with G.S. 7B-1110(a) because the trial court did not make any written findings of fact regarding the issues of whether termination would aid in the accomplishment of the permanent plan, G.S. 7B-1110(a)(3), and the quality of the bond between the child and the mother, G.S. 7B-1110(a)(4). In re J.L.H., 224 N.C. App. 52, 741 S.E.2d 333 (2012).

Given the totality of the evidence and the trial court's extensive order, the court clearly considered the factors in G.S. 7B-1110, and it was in the best interest of the juveniles that the parental rights of the parents be terminated. In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013).

Trial court did not abuse its discretion in determining that termination of parental rights was in a child's best interests because the court considered: (1) the bond between the juvenile and the parent; and (2) the quality of the relationship between the juvenile and the proposed adoptive parent. In re D.C., 236 N.C. App. 287, 763 S.E.2d 314 (2014).

Trial court did not abuse its discretion in terminating a mother's parental rights because it made the requisite findings, and those findings revealed a reasoned decision; the trial court made findings, supported by competent evidence, concerning the likelihood of adoption for the mother's children concerning whether termination of the mother's parental rights would aid in the accomplishment of the permanent plan of adoption, and concerning the bond between the mother and children. In re A.H., 250 N.C. App. 546, 794 S.E.2d 866 (2016), review denied, 2017 N.C. LEXIS 294 (2017).

There was no possible error by the trial court and the order terminating the father's parental rights was affirmed; the order included sufficient findings, supported by clear evidence, that at least one statutory ground for termination existed, plus the trial court made appropriate findings on each of the relevant dispositional factors and did not abuse its discretion in assessing the children's best interests. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875 (2018).

Trial court made sufficient findings in determining that the termination of respondent's parental rights was in the child's best interest, and thus the termination order was affirmed. In re T.N.H., 372 N.C. 403, 831 S.E.2d 54 (2019).

Trial court's evidentiary findings did not meet the requirements of G.S. 1A-1, N.C. R. Civ. P. 52(a)(1), as applied to adjudicatory orders under G.S. 7B-1109(e) and G.S. 7B-1110(c), because the trial court found none of the ultimate facts required to support an adjudication of the existence or nonexistence of the circumstances in G.S. 7B-1111. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

Trial court's written findings were sufficient to demonstrate its consideration of the parties' evidence regarding the bond between the children and the mother under G.S. 7B-1110(a)(4) where once the children were placed with the kinship provider, the mother did not visit the children, failed to maintain regular contact with them, and made no efforts to complete the goals of the Out of Home Family Services Agreement for either child. In re C.V.D.C., 374 N.C. 525, 843 S.E.2d 202 (2020).

Mother's contention that the trial court only nominally addressed the statutory factors was without merit; the trial court considered the factors along with the facts of the case, finding in part that one child did not have a bond with mother and actively resisted having any contact with her, the other child did have bond with mother, and neither child was in a pre-adoptive placement and the department was trying to locate a foster home that would adopt both children together. In re H.A.J., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Failure to Enter Findings. - Transcript demonstrated that the trial court did carefully consider each of the statutory criteria, and although the better practice would have been for the trial court to make written findings as to the factors, the failure to do so did not constitute reversible error; there was no conflict regarding the likelihood of adoption, no bond existed between the father and the children, and because this was a private termination proceeding, there was no permanent plan for the children within the meaning of G.S. 7B-1110. In re A.U.D., 373 N.C. 3, 832 S.E.2d 698 (2019).

Findings Not Challenged. - Father did not challenge any of the trial court's best interest findings and therefore they were binding on appeal, plus the court was satisfied that the trial court's findings showed due consideration of the dispositional factors. In re E.H.P., 372 N.C. 388, 831 S.E.2d 49 (2019).

Findings Binding on Appeal. - Finding related to the likelihood that the children would be adopted had the requisite evidentiary support and was binding on appeal as it was supported by the testimony of the guardian ad litem, the social worker, and the adoption specialist. In re I.N.C., 374 N.C. 542, 843 S.E.2d 214 (2020).

Findings as to the nature and extent of the mother's bond with the children were binding as they were supported by the social worker's testimony. In re I.N.C., 374 N.C. 542, 843 S.E.2d 214 (2020).

Findings Not Required. - Mother and her boyfriend had not set a wedding date, and thus the factor of their relationship was not sufficiently relevant to require the trial court to make findings concerning the impact of said relationship on termination of the father's parental rights or on the adoption of the child. In re C.J.C., 374 N.C. 42, 839 S.E.2d 742 (2020).

As this case involved a private termination of parental rights initiated by the child's mother, who had full custody of the child at the time, the likelihood of the child's potential adoption was not a sufficiently relevant factor in determining whether termination of the father's parental rights was in the child's best interests. In re C.J.C., 374 N.C. 42, 839 S.E.2d 742 (2020).

Since there was no conflicting evidence about either the likelihood of each child's adoption if the mother's rights were terminated or one child's strong bond with his prospective adoptive parents, no written findings were required in this regard; as no prospective permanent placement had been identified for the other two children, that factor did not apply. The trial court did not violate the statutory mandate as to its determination of the children's best interests. In re J.S., 374 N.C. 811, 845 S.E.2d 66 (2020).

A finding that children are well settled in their new family unit does not alone support a finding that it is in the best interest of the children to terminate other parent's parental rights. Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).

Differences in Oral and Written Findings. - Party failed to show the existence of error based merely on the fact that there were differences between the findings orally rendered at the hearing and those set forth in the written order. In re A.U.D., 373 N.C. 3, 832 S.E.2d 698 (2019).

Written Findings Not Explicitly Required. - It is clear that a trial court must consider all of the factors in G.S. 7B-1110, but the statute does not explicitly require written findings as to each factor. In re A.U.D., 373 N.C. 3, 832 S.E.2d 698 (2019).

At the dispositional stage a court is required to issue an order of termination unless it "determines that the best interests of the child require that the parental rights of such parent not be terminated." In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

Burden of Proof at Disposition Stage of Hearing. - Although the evidence supported the findings of abuse by the mother and failure to correct conditions which led to the removal of her children, the trial court erroneously placed the burden of proof on the mother as to the best interests of the children at the dispositive stage of the hearing; therefore, the judgment had to be vacated as to the dispositional order and the case was remanded for a new dispositional hearing. In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 237 (2002).

Failure to Show Progress Justified Termination. - Termination of the mother's parental rights based on the ground of failure to make reasonable progress was proper because she had not maintained stable employment for a minimum of six months; she failed to obtain stable housing for at least six months as her frequent moves constituted evidence of housing instability, and she was days shy of having resided at her current residence for the designated six-month period of time; and she failed to complete the recommended treatment needed to fully address the core issues of substance abuse and domestic violence which had played the largest roles in the children's removal. In re I.G.C., 373 N.C. 201, 835 S.E.2d 432 (2019).

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).

Finding of Neglect. - Trial court properly terminated the father's parental rights on the ground that the father neglected the father's 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).

Order terminating the parental rights to the minor child was affirmed because respondents were the sole care providers for the child when the injury occurred and the father failed to acknowledge why his child entered Mecklenburg County Department of Social Services custody, and he also failed to exhibit changed behaviors. In re Y.Y.E.T., 205 N.C. App. 120, 695 S.E.2d 517 (2010).

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).

Trial court properly terminated a father's parental rights based on neglect as there was no requirement that he be responsible for the prior adjudication of neglect, he made minimal efforts to show interest in the child while incarcerated, and the record evidence showed that the father was responsible for his failure to satisfy his case plan's requirements. Moreover, the evidence supported the trial court's findings that the child was likely to be neglected if returned to the father's care, the father was responsible for the lack of visitation, and his convictions and sentence were drug-related. In re S.D., 374 N.C. 67, 839 S.E.2d 315 (2020).

Trial court properly terminated a mother's parental rights to the minor child and that it was in the child's best interests that the mother's parental rights be terminated because there was evidence in the record of past neglect and a probability of future neglect, the mother's failure to complete her case plan supported the conclusion that she willfully left her child in foster care or a placement outside the home for over 12 months without making reasonable progress in correcting the circumstances that led to the removal of the child, and her failure to comply with substance abuse and mental health treatment and to address domestic violence issues sufficiently demonstrated her lack of reasonable progress. In re Z.K., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Findings Regarding Adoption. - Statute did not require the trial court to set forth detailed findings establishing the benchmarks a traumatized child had to meet to obtain the necessary stability to be adopted; on remand, the trial court only to make findings of fact addressing the child's likelihood of adoption, and the challenged findings of fact were supported by competent record evidence and binding on appeal. In re S.M.M., 374 N.C. 911, 845 S.E.2d 8 (2020).

Trial court recognized that no evidence was presented regarding adoption and took judicial notice of the pending civil custody action filed by petitioners seeking custody of the children; trial court was not required to find a likelihood of adoption in order for termination to be in the children's best interests. In re G.G.M., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Separate Hearings Not Required. - Although the court is required to apply different evidentiary standards at each of the two stages of adjudication and disposition, there is no requirement that the stages be conducted at two separate hearings. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986); In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

Bifurcation of Hearing Not Required. - Hearing transcript showed the trial court heard dispositional evidence from a social worker and the guardian ad litem (GAL) and received the GAL's dispositional report into evidence; although the dispositional evidence was intertwined with adjudicatory evidence, a trial court was not required to bifurcate the hearing into two distinct stages. In re S.M.M., 374 N.C. 911, 845 S.E.2d 8 (2020).

No Error in not Following Guardian Ad Litem's Recommendations. - As the trial court possessed the authority to weigh all of the evidence, the mere fact that the court elected not to follow the recommendation of the guardian ad litem did not constitute error. In re A.U.D., 373 N.C. 3, 832 S.E.2d 698 (2019).

The children's best interests are paramount, not the rights of the parent. In re Smith, 56 N.C. App. 142, 287 S.E.2d 440, cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982).

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).

G.S. 50-13.2(a) and G.S. 7B-1110 both require a court to make findings of fact as to a child's best interests. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

Children's Preference. - Adoption social worker who supervised the majority of the mother's visitations with the children testified that she did not see a bond, and the trial court was entitled to credit this testimony over any conflicting evidence; additionally, in light of the trial court's uncontested finding of fact that the mother was incapable of raising her children, the fact that two of the children might have expressed a preference to return home was noteworthy but not determinative. In re J.S., 374 N.C. 811, 845 S.E.2d 66 (2020).

Family Integrity May Be Considered. - It is within the court's discretion to consider such factors as family integrity in making its decision of whether termination is in the best interests of the children. In re Smith, 56 N.C. App. 142, 287 S.E.2d 440, cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982).

During the adjudicatory phase of a termination of parental rights proceeding, a trial court does not consider whether there is a relative who can take custody of the minor child, but focuses on whether there is evidence to support termination on the grounds alleged in the petition, and if a fit relative were to come forward and declare their desire to have custody of the child, the court may consider this during the dispositional phase as grounds for why it would not be in the child's best interests to terminate the parent's parental rights. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005).

Failure to Make Reasonable Progress. - Termination of the mother's parental rights was proper based on her willful failure to make reasonable progress because, inter alia, the mother voluntarily placed the children in the custody of the county department of social services so that the father could live with her; and she failed to protect her children by allowing the father, who had assaulted her and two of the children, to return to the family home. In re A.R.A., 373 N.C. 190, 835 S.E.2d 417 (2019).

Mother's rights were properly terminated as the evidence supported a finding that she had made no meaningful effort or progress toward resolving the substantial risk posed to the child by her lengthy history of relationships involving domestic violence. In re J.A.M., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Termination of Both Parents' Parental Rights. - Where the trial court properly concluded that grounds for termination existed, as set forth in former G.S. 7A-289.32(7), the court did not abuse its discretion in finding that it was in the best interests of the child to terminate both parents' parental rights. In re Guynn, 113 N.C. App. 114, 437 S.E.2d 532 (1993).

Termination of the parents' rights was in the children's best interests because adoption of each juvenile was likely; termination would aid in the permanent plan of adoption; the juveniles were bonded to their prospective foster parents; the foster parents were providing for the juveniles' special needs; the proposed adoptive parents had agreed to allow the juveniles to visit with each other on a regular basis; and other factors outweighed the parents' strong bond with the eldest child. In re A.H.F.S., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of the both parents' rights was proper because the second eldest child's behavioral issues did not make adoption unlikely; a pre-adoptive home was interested in adopting him and his five siblings; and the mother failed to show that reasonable progress had been made in correcting the conditions which led to the removal of the second eldest child and his siblings. In re S.M., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of Parental Rights Supported by Child's Best Interests. - The respondent mother offered "nothing" upon which the trial court could reasonably base a decision to find it would not be in the child's best interests to terminate parental rights, where although she proffered evidence claiming she had overcome her problems and achieved rehabilitation while in prison, enrolling in a cosmetology course there, frequently writing letters to her daughter, writing to petitioner and the court asking them not to terminate her parental rights, and requesting visits with the child, she had been written up at least 11 times for disciplinary problems during her latest incarceration, including disobeying orders, misusing medicine, theft of property, possessing non-threatening contraband and provoking an assault. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001).

A trial court did not abuse its discretion in determining that termination of a mother's parental rights to her daughter was in the child's best interests where: (1) numerous findings were made regarding the extensive sexual abuse the daughter suffered at the hands of her brother and her stepfather; (2) where the mother acknowledged awareness of the abuse, but did virtually nothing to protect the daughter from it; (3) where the mother lacked insight regarding her own significant mental health issues; (4) where the mother played a significant role in creating a neglectful and abusive home environment for the daughter, and (5) where the mother had made minimal progress in correcting the issues that led to removal of the daughter from the mother's home. In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003).

Trial court did not abuse its discretion in finding that it was in the best interests of the children under G.S. 7B-1110(a) that the mother's parental rights be terminated; while the mother emphasized the strong bond with the children and that the mother made progress doing what the trial court ordered, the trial court was entitled to give greater weight to other evidence, including the mother's repeated statements that the mother could not handle the responsibility of parenting the children. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006).

Trial court did not abuse its discretion in concluding that it was in a child's best interests to terminate a mother's parental rights where: (1) the mother failed to maintain stable housing, was unemployed, and failed to comply with a child support order, (2) the mother had left the child with others, including an incident initiating the child's removal from her custody, (3) 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, (4) the mother only sporadically visited and contacted the child for over five years, (5) the child had been living with a guardian ad litem (GAL) for over five years and considered the GAL's step-son her big brother, and (6) the mother had been aware of the GAL's intent to adopt the child for three years, yet her personal situation had not improved or stabilized. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300 (2005).

At the dispositional stage, a court is required to issue an order of termination unless it determines that the best interests of the child require that the parental rights of such parent not be terminated; a trial court did not err in refusing to conclude that termination was not in the best interests of the child where it found, inter alia, that the father was a convicted sex offender who violated his parole and was returned to prison while the child was in the custody of Department of Social Services, that the father was permitted only supervised visits with the child, was forbidden to reside in the same house with the child, and was ordered to complete sex offender treatment, which he failed to do. In re S.B.M., 173 N.C. App. 634, 619 S.E.2d 583 (2005).

Termination of the mother's parental rights was in the best interest of the child where, inter alia, the mother demonstrated no ability to establish a safe and stable home for the child, despite repeated offers of funding and logistical assistance from petitioner Durham County Department of Social Services. In re L.A.B., 178 N.C. App. 295, 631 S.E.2d 61 (2006).

Terminating a mother's parental rights was in a child's best interest under G.S. 7B-1110(a) as: (1) the child had been in stable foster care since 2002; (2) the child's foster parents hoped to adopt the child; (3) the foster parents were of good health and good character, and their adoption of the child would likely be approved; and (4) the child was a healthy child with no significant behavioral or physical problems that would hamper the child's adoption. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

Trial court did not abuse its discretion in finding that the termination of a mother's parental rights was in the best interest of a child, pursuant to G.S. 7B-1110; the trial court in its discretion, properly considered the factors enumerated in G.S. 7B-1110(a) in finding that the child was bonded to his foster parents and that given the age of the child returning the child to respondent would not have been in the child's best interest, and that the child had not developed as many illnesses in foster care as when in the mother's custody and that the child's current placement was appropriate and was in the best interest of the child. 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).

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).

Termination of the father's parental rights was in the best interest of the children where the evidence showed that the four-year old had been in the custody of the Department of Social Services for three years, suffered from a medical condition that required frequent medical visits and a monitored diet, and had bonded with the child's foster family; that the older child had bonded with the child's placement family, had improved the child's grades, and was participated in therapy on a regular basis; and the father did not demonstrate an understanding of the needs of either child. In re N.A.L., 193 N.C. App. 114, 666 S.E.2d 768 (2008).

Trial court did not abuse its discretion in concluding that it was in a child's best interests to terminate a mother's parental rights because there was abundant evidence of the mother's violent and inconsistent behavior and her inability to parent appropriately and follow the recommendations of medical personnel to improve her mental health and parenting abilities; the child was young and had been in the custody of the Department of Social Services almost her whole life, and she needed permanency. In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008), review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).

Trial court's findings of fact and conclusions of law supported its determination that it was in a child's best interests to terminate a mother's parental rights because the trial court's order contained findings of fact as to the child's age, how long the child had been in foster care, and the likelihood of his being adopted by the relative placement; the findings reflected that the child had been placed with a maternal aunt since birth, had never lived with the mother, and was doing well in the placement with the aunt, and that his needs were being met and the aunt was interested in adopting him. In re D.D., - N.C. App. - , - S.E.2d - (June 16, 2009).

Where a mother's parental rights were terminated on the basis of neglect, termination of her parental rights were in the child's best interests under Sufficient evidence supported the termination of a mother's parental rights under G.S. 7B-1110 because the trial court properly considered the child's age, her bond with her foster parents, and the likelihood of adoption. 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).

Appellate court found no abuse of discretion in the trial court's determination that termination of the mother's parental rights was in the minor child's best interest under G.S. 7B-1110(a) because he had been residing with his grandparents for more than a year, the permanent plan for the minor child was adoption and the paternal grandparents desired to adopt him as soon as all obstacles to adoption were removed, the mother failed to attend hearings concerning the minor child, the minor child had formed a bond with his paternal grandparents, and they had taken care of his special needs by taking him to appointments with various specialists. In re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485 (2009).

Where the parents had not made progress in correcting the conditions that had led to the child's removal, termination of parental rights was in the child's best interests under G.S. 7B-1110(a) because the parents had not established a bond with the child, particularly as they had cancelled two of five recent scheduled visits, and the prospective adoptive parents had established such a bond. 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).

Where the record showed that a father had abandoned his two minor daughters, termination of his parental rights was in the children's best interests under G.S. 7B-1110(a) because the father had not shown any intention or desire to meet the girls' needs or assume the duties of a father, and the wife's new husband wanted to adopt them and he had assumed the duties of a father. In re M.D., 200 N.C. App. 35, 682 S.E.2d 780 (2009).

Although the biological father argued that the trial court abused its discretion in concluding it was in the best interest of the minor child to terminate the biological father's parental rights because the biological father's mother was willing to take custody of the minor child and it was unclear whether the minor child's foster parent would be able to adopt the minor child, the court found that nothing within G.S. 7B-1110 required that termination lead to adoption in order for termination to be in a child's best interests, and the biological father had not taken any actions in G.S. 7B-1111(a)(5) exhibiting a parental interest in the minor child, which provided grounds for termination of his parental rights. In re M.M., 200 N.C. App. 248, 684 S.E.2d 463 (2009).

Trial court did not abuse its discretion in determining it was in the best interest of a child that the parental rights of the child's parent were to be terminated because the court found that: (1) the child was eight years old; (2) adoption was very likely as the child was living with a foster family that wanted to adopt the child as soon as legally possible; (3) termination of parental rights would accomplish the permanent plan of adoption; (4) although the child had a bond with the parent, the child had indicated to the child's therapist that the child did not wish to return to the parent's custody; and (5) the child had bonded with the child's foster family, which had been meeting the child's needs and providing the love and support expected of a family. In re D.J.E.L., 208 N.C. App. 154, 701 S.E.2d 1 (2010), review denied 706 S.E.2d 232, 2011 N.C. LEXIS 40 (2011).

Trial court did not err in concluding that it was in the best interests of a father's son to terminate the father's parental rights, as the trial court's findings of fact showed that the son lived with his mother and her current husband, that he had a close relationship with his stepsister, that the mother and her husband were actively involved with the son's extracurricular activity, that the mother and her husband had been the sole source of parental care for the child for the past ten years, that the father had not been a part of the child's school or extracurricular activities, that the child was well-adjusted, that the father was incarcerated for a crime of violence, and that the nine-year-old child last saw the father when he was five years old. In re A.J.M.P., 205 N.C. App. 144, 695 S.E.2d 156 (2010).

Trial court did not err in concluding that termination was in the best interests of the children because the enumerated findings demonstrated the trial court considered the children's likelihood of adoption. In re H.D., 239 N.C. App. 318, 768 S.E.2d 860 (2015).

Trial court did not abuse its discretion in finding termination of a mother's parental rights was in the best interests of the children because documentary evidence produced by the children's guardian ad litem noted that with therapy, the children would be able to be adopted; the trial court's order did contain a finding addressing the children's behavioral issues, and the trial court found that with continued therapeutic treatment, the likelihood of their adoption remained high. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).

Court did not err in deeming it likely that the grandparents would adopt the child, and it did not abuse its discretion in concluding that the child's best interests would be served by terminating the mother's parental rights because the grandparents did not lack the ability to obtain standing to adopt the child as they were the child's grandparents and legal custodians; they had raised the child since he was 18 months old; they wished to adopt him; by all accounts, the child was thriving in the grandparents' home; and the child's guardian ad litem recommended the termination of the mother's and the father's parental rights in order to facilitate the child's adoption by the grandparents. In re D.E.M., 254 N.C. App. 401, 802 S.E.2d 766 (2017), aff'd, 370 N.C. 463, 809 S.E.2d 567, 2018 N.C. LEXIS 55 (2018).

Trial court did not abuse its discretion in terminating a mother's parental rights under N.C. Gen. Stat. § 7B-1110(a) where although the grandparents did not have standing to petition to adopt the child, the trial court had not operated under a misapprehension of the law given that they were her legal guardians and she was thriving in their home. In re A.L.Z., 256 N.C. App. 754, 808 S.E.2d 176 (2017), review denied, stay lifted, stay denied, 2018 N.C. LEXIS 260 (2018) review denied, stay lifted, stay denied, 811 S.E.2d 165, 2018 N.C. LEXIS 260 (2018).

Trial court did not abuse its discretion in determining that termination of the mother's parental rights was in the children's best interest, as, contrary to the mother's assertion, the trial court did consider the mother's progress toward sobriety but noted that she had been incarcerated for all but a few days of the time and the trial court also considered the child's bond with the mother and other relatives. In re T.H., - N.C. App. - , 832 S.E.2d 162 (2019).

Trial court's conclusion that termination of a father's parental rights was in the children's best interests did not constitute an abuse of discretion where the trial court appropriately considered the factors stated in G.S. 7B-1110(a), and its determination that other factors outweighed the father's strong bond with the children was not manifestly unsupported by reason given their strong bond with their foster parents, the strong likelihood of adoption, and the father's lack of progress in addressing his substance abuse, domestic violence, and mental health. In re Z.L.W., 372 N.C. 432, 831 S.E.2d 62 (2019).

Termination of the mother's parental rights was in the son's best interest as he had a strong bond with his current foster family and was forming a long-term attachment to them; he was receiving structure and stability from the foster family; he needed permanence and continued therapy; and the mother was no longer participating in his therapy and had not called to inquire about his welfare. In re A.R.A., 373 N.C. 190, 835 S.E.2d 417 (2019).

Trial court did not abuse its discretion when determining that terminating the parents' rights was in the juveniles' best interests, finding that other factors outweighed the parents' strong bond with the juveniles, including that termination was necessary to achieve the primary permanent plan, the children were in a preadoptive home with their maternal grandparents, the children and the grandparents were well bonded, and the children would likely be adopted. In re Z.A.M., 374 N.C. 88, 839 S.E.2d 792 (2020).

Trial court did not abuse its discretion in concluding that it was in the children's best interests to terminate a mother's parental rights because the trial court thoroughly considered the children's developmental challenges and their likelihood of adoption based on the children's then placement and potential future adoptive parents. Furthermore, there was testimony that the children were thriving and showing great improvement developmentally in their placements. In re J.H., 373 N.C. 264, 837 S.E.2d 847 (2020).

Trial court properly terminated a father's parental rights in his son because the son's potential placement with a relative was not a factor it was required to consider or make findings about during the dispositional phase of the termination of parental rights proceeding; the trial court determined that the child's best interests would be served by remaining in the custody of the county department of health and human services rather than being placed with a relative. In re S.D.C., 373 N.C. 285, 837 S.E.2d 854 (2020).

Trial court's findings demonstrate that it considered the best interest factors and determined that the child's young age, lack of any bond with the father, and need for consistency, combined with the father's lack of involvement with the child, supported a finding that termination was in the child's best interests. In re C.J.C., 374 N.C. 42, 839 S.E.2d 742 (2020).

Termination of the father's rights was in the child's best interests; given his abandonment of the child for several years before the mother filed her petition, the father's conduct indicated he would not promote the child's physical and emotional well-being, plus the child considered the mother's husband as her only father. In re K.N.K., 374 N.C. 50, 839 S.E.2d 735 (2020).

Trial court did not abuse its discretion by concluding that the child's best interests would be served by terminating the father's parental rights because it found that the stepfather wished to adopt the child, the child indicated he wanted to be adopted by the stepfather, the child had very little recollection of his father, the father had a lengthy history of assaultive behavior against the mother, and he had been involved in criminal activity for the majority of the child's life. In re J.T.C., - N.C. App. - , - S.E.2d - (Aug. 18, 2020).

Termination of a father's parental rights was in the child's bests interests where the current placement providers had expressed an interest in adoption. In re J.C.L., 374 N.C. 772, 845 S.E.2d 44 (2020).

Termination of the mother's parental rights was in the children's best interests where a finding of high likelihood of adoption was supported by the social worker's testimony. In re M.A., 374 N.C. 865, 844 S.E.2d 916 (2020).

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).

Trial court's conclusion that termination of the parents' parental rights was in the children's best interests did not constitute an abuse of discretion because the court appropriately considered the statutory factors when determining the children's best interests and the court's finding that the parents' strong bond with the children was outweighed by other factors was not manifestly unsupported by reason. Trial court also found that the parents were not in a position to provide adequate care for the children who were in preadoptive placement. In re J.J.B., 374 N.C. 787, 845 S.E.2d 1 (2020).

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).

Trial court's decision that it was in a child's best interests to terminate the mother's parental rights was not an abuse of its discretion as a social worker testified that the bond between the mother and the child during supervised visitations was similar to that of playmates, while the quality of the relationship between the child and the proposed adoptive parent was similar to that of parent and child. The court also did not relegate the decision of whether to terminate parental rights to a decision between the mother and the foster parent. In re A.B.C., 374 N.C. 752, 844 S.E.2d 902 (2020).

Dispositional findings showed that the trial court considered all of the relevant G.S. 7B-1110(a) criteria and made a reasoned determination that termination of parental rights was in the children's best interests given the parents' failure to make progress in addressing their ability to deal with the children's needs, the children's relative youth, the likelihood of adoption, and the children's need for permanence after more than five years in state custody. In re I.N.C., 374 N.C. 542, 843 S.E.2d 214 (2020).

Trial court properly terminated a mother's parental rights to her child for neglect, willful failure to correct the conditions that led to the child's removal from her home, failure to pay a reasonable portion of the cost of the child's care while the child was in DSS custody, and as in the child's best interest because the trial court made sufficient dispositional findings regarding the child's bond with her maternal grandmother and half-brother in light of the evidence before it, considered the relevant statutory criteria, and weighed the competing goals of preserving the child's ties to her biological family and achieving permanence for the child through adoption. In re S.J.B., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Termination of parental rights was appropriate because the trial court's dispositional findings demonstrated that it considered the statutory criteria and made a reasoned determination that termination of a mother's parental rights was in a child's best interests as the court made findings concerning the child's age, the likelihood of adoption, whether termination would aid in accomplishing the permanent plan of adoption, and the mother's bond with the child. The lack of a proposed adoptive placement for the child was not a bar to termination. In re C.B., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of mother's rights was in the children's best interests; adoptability of the children alone was not dispositive, they had been in foster care for 13 months, one child had no bond with mother, and while the other child did have a bond, other factors outweighed this, and termination was necessary to achieve permanence. In re H.A.J., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Trial court made findings regarding the children's ages, the pending civil custody action, the children's lack of a bond with father after his five and one-half year absence, the children's close and loving relationship with their grandparents, who had provided for all of the children's needs, and the negative impact on the children from father's sudden return into their lives; termination was in the children's best interests. In re G.G.M., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Trial court appropriately exercised its discretion to weigh the statutory factors to properly conclude that it was in the best interests of a mother's children to terminate the parental rights of the mother. While the considered the bond between the children and the mother, the court noted the mother's not provide healthy parental boundaries, the age of each child, and the safe and secure placement of the children with a caregiver who intended to adopt the children. In re A.M., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Construction. - Father's claim that the amended version of G.S. 7B-1110 required a trial court to determine the "worthiness" of the grounds for termination found in the adjudication stage of the proceedings when making its discretionary decision in the dispositional phase lacked merit. In re C.I.M., 214 N.C. App. 342, 715 S.E.2d 247 (2011).

Pursuant to G.S. 7B-1110(a), the trial court did not abuse its discretion in concluding that termination of a father's parental rights over his children was in the best interests of the children, as it considered the statutory factors in making that determination after it found sufficient evidence to support the grounds for termination. In re C.I.M., 214 N.C. App. 342, 715 S.E.2d 247 (2011).

In a case in which a mother appealed the termination of her parental rights by arguing that the court failed to make adequate findings of fact on the dispositional factors set forth in G.S. 7B-1110(a), while the court was required to consider all six listed factors, it was not required to make written findings with respect to all six factors; the court had to enter written findings in its order concerning only those factors that were relevant. In re D.H., 232 N.C. App. 217, 753 S.E.2d 732 (2014).

In a case in which a mother appealed the termination of her parental rights by arguing that the court failed to make adequate findings of fact on the dispositional factors set forth in G.S. 7B-1110(a), the absence of an adoptive placement was not a bar to terminating the mother's parental rights. In re D.H., 232 N.C. App. 217, 753 S.E.2d 732 (2014).

Trial court's order shows a well-reasoned weighing of the child's adoptability and the obstacles thereto, along with her age, lack of appropriate bond with the mother, and need for permanency; the trial court did not abuse its discretion in concluding that termination of the mother's rights was in the child's best interests. In re S.M.M., 374 N.C. 911, 845 S.E.2d 8 (2020).

Trial court did not abuse its discretion by determining that termination of parental rights was in a child's best interests because the court's dispositional findings demonstrated that it considered the relevant statutory criteria and gave due consideration to the child's age, the likelihood of adoption, whether termination would facilitate in the achievement of the permanent plan, the child's bond with the child's parents, and the quality of the relationship between the child and the foster placement. In re A.J.T., 374 N.C. 504, 843 S.E.2d 192 (2020).

Refusal to Dismiss Petition. - The trial court did not err in refusing to exercise its discretion under former G.S. 7A-289.31 (see now this section), which authorizes the court to dismiss a petition to terminate a parent's rights despite the existence of grounds for termination. Furthermore, the court was not required to find facts for this refusal. In re Caldwell, 75 N.C. App. 299, 330 S.E.2d 513 (1985).

Entry of Judgment Not Addressed by Section. - This section refers to the court issuing an order. It does not speak of the entry of judgment and nowhere is it found that the court is under a 10-day rule to enter a written judgment. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982).

Abuse of Discretion. - Trial court abused its discretion in concluding that it was in the best interest of the children to terminate father's parental rights. Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).

Evidence Held Insufficient. - Evidence held insufficient to support the grounds for termination of parental rights. In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997).

Evidence Sufficient to Support Termination. - Ample evidence supported the three statutory grounds for termination of the mother's parental rights found by the trial court, including that the mother failed to show an ability to properly parent the children by using the skills that had been taught in the various programs that the mother attended. In re C.M., 183 N.C. App. 398, 644 S.E.2d 630 (2007).

In a case in which a mother argued on appeal that the factual findings made by a district court did not support the conclusion that termination of her parental rights was in the best interests of the juvenile, the district court's uncontested findings demonstrated that it properly considered the required factors listed in G.S. 7B-1110(a). The termination of her parental rights furthered the plan of adoption; the district court found that the juvenile was in need of a stable and permanent environment and that terminating the mother's parental rights was a step toward giving the juvenile a stable and permanent environment. In re S.T.P., 202 N.C. App. 468, 689 S.E.2d 223 (2010).

Findings fully supported the trial court's conclusion that grounds existed to terminate a mother's parental rights based upon her willful failure to pay a reasonable portion of the cost of care during the children's placement in county department of social services custody because the mother was on notice of her failure to pay something towards the cost of care for her children; the trial court repeatedly found in its permanency planning orders that none of the parents were paying child support. In re S.E., - N.C. - , 838 S.E.2d 328 (2020).

The evidence supported a finding that termination of parental rights was in the best interest of the child; while there were perceived improvements in respondent's mental condition, the evidence tended to show that after almost two years of diligent efforts by DSS, respondent was not able to demonstrate that she could adequately provide for her child's needs, and testimony by one expert as to the negative effect of any further delay on a permanent placement of the child, given his age and close bond to his foster family, was particularly persuasive. In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).

Trial court's findings were supported by evidence that the mother left her three children in foster care for over a year without showing reasonable progress; her fourth child's treatment and status were clearly relevant to show neglect. In re Johnston, 151 N.C. App. 728, 567 S.E.2d 219 (2002).

Trial court did not abuse its discretion in terminating a father's parental rights because grounds for termination existed under G.S. 7B-1111(a)(5) where, in the three-and-a-half years since the mother told the father that she was pregnant and that he was the father, and until the mother contacted him about child support, the father had expressed no interest in discovering whether the mother had given birth, in determining whether the child was his, or in taking responsibility for the child. In re T.L.B., 167 N.C. App. 298, 605 S.E.2d 249 (2004).

There were sufficient findings to support the termination of parental rights order, including the fact that the father failed to propose an alternate replacement to take care of the children, that the father failed to provide any contact, love, or affection for the children, and that the father failed to attempt to contact the children while he was incarcerated. In re D.J.D., 171 N.C. App. 230, 615 S.E.2d 26 (2005).

Trial court's decision to award custody of the children to their biological father, to limit the mother's visits with the children by requiring them to be supervised, and to prohibit any contact between the children and the stepfather, was plainly the result of a reasoned decision guided by the clear best interests of these juveniles, as the evidence showed that, inter alia, the mother "thumped" the five-year-old in the face hard enough to leave a finger-shaped bruise, the stepfather hit the younger child with a brush hard enough to leave a large bruise, respondents attempted to convince the younger child to lie, and the mother admitted that she left the younger child 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).

Evidence Properly Considered. - Trial court considered the testimony of the guardian ad litem and the therapist, determined their testimony was credible, and made an independent finding regarding the children's bond with father based on that testimony, which was proper. In re G.G.M., - N.C. - , - S.E.2d - (Mar. 19, 2021).

The court did not err in issuing a written order terminating respondent's parental rights which contained language not included in its recital in open court where the findings about which respondent complained related to the "adjudication" by the trial court, pursuant to the provisions of former G.S. 7A-289.32, that grounds for termination of respondent's parental rights existed at the time of the hearing, not to the court's "disposition" pursuant to former G.S. 7A-289.31, and where the order entered by the trial court was in "general conformity" to the disposition announced in open court. In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).

Failure to Make Factual Determination. - In a case in which a mother appealed a trial court's termination of her parental rights and the trial court failed to make a determination which directly addressed whether the mother lacked an appropriate alternative child care arrangement, further findings of fact by the trial court on that issue were required. In re N.B., 200 N.C. App. 773, 688 S.E.2d 713 (2009).

Failure to Enter Written Termination Order Within 30 Days. - Mother was awarded a new termination of parental rights trial where the written order was not entered until five months after the trial court orally announced its decision; this violated G.S. 7B-1109 and G.S. 7B-1110, which required entry to be made within 30 days, and prejudice was shown, as the delay was unnecessary, closure was not obtained, and records and transcripts were either misplaced or irretrievable. In re C.J.B., 171 N.C. App. 132, 614 S.E.2d 368 (2005).

Trial court's six-month delay in entering order terminating parental rights was so prejudicial to the rights of the parent, the child, and the foster parents who hoped to adopt that the decree was vacated and the matter remanded for a new hearing. In re O.S.W., 175 N.C. App. 414, 623 S.E.2d 349 (2006).

Where the trial court did not reduce the parental termination to writing until seven months after the termination hearing in violation of the 30-day requirement of G.S. 7B-1109(e), -1110(a), -1111(a); all parties were prejudiced, as the mother and child lost time together, the foster parents were in a state of flux, and the adoptive parents were unable to complete their family plan. In re D.S., 177 N.C. App. 136, 628 S.E.2d 31 (2006).

Trial court's failure to reduce to writing its bench ruling terminating a father's parental rights within 30 days as required by G.S. 7B-1110(a) was reversible error; the father established prejudice from, inter alia, the following: (1) he was entitled to a speedy resolution of the termination of the parental rights petition; (2) the child was entitled to a permanent plan of care at the earliest possible age; (3) the trial court's delay in entering the order delayed the father's right to appeal; and (4) the trial court's delay extends the time when parents are separated from their children to the prejudice of his relationship with the child. In re J.N.S., 180 N.C. App. 573, 637 S.E.2d 914 (2006).

Trial court violated the statutes by entering its termination order roughly six months after the adjudicatory and dispositional hearing. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).

Trial court violated the statute because its termination of parental rights order was not entered until approximately nine months after the completion of the adjudicatory and disposition hearing. In re L.L.O., 252 N.C. App. 447, 799 S.E.2d 59 (2017).

Delay in Entering Termination Order. - Seven month delay between a termination hearing and the trial court's entry of its termination order ran counter to the legislative intent in enacting the 30-day requirement of G.S. 7B-1109(e) and G.S. 7B-1110(a), and prejudiced the mother, who was prevented from filing an appeal until seven months after the hearing; pending the appellate court's determination of the appeal, the child remained in the department's custody, and subsequent court proceedings involving the child were limited to those "temporary" orders authorized by G.S. 7B-1113. In re T.L.T., 170 N.C. App. 430, 612 S.E.2d 436 (2005).

Extraordinary delay of almost one year after the termination hearing in entering the order terminating a mother's parental rights pursuant to G.S. 7B-1109(e), G.S. 7B-1110(a) was sufficient to show prejudice to warrant reversal and a new hearing. In re T.W., 173 N.C. App. 153, 617 S.E.2d 702 (2005).

Order terminating a father's parental rights was reversed, where the trial court entered its order more than five months after the conclusion of the termination hearing; the late entry of the written order was a clear and egregious violation of G.S. 7B-1109(e) and G.S. 7B-1110(a). Owen v. Keeter (In re C.L.K.), 182 N.C. App. 600, 643 S.E.2d 458 (2007).

When a trial court took a best interests determination under advisement at the end of a termination hearing, the trial court abused its discretion in denying the mother's motion to re-open the evidence because, at the time of the mother's motion, the court had not yet made the best interests determination required to terminate the mother's parental rights G.S. 7B-1109 and G.S. 7B-1110; the mother filed her motion on April 12, 2012, the trial court heard and orally denied the motion on April 17, 2012, and the order terminating parental rights was entered on April 18, 2012. In re B.S.O., 225 N.C. App. 541, 740 S.E.2d 483 (2013).

Failure to Tax Costs in Award - Where the father sought to terminate the mother's parental rights and sought child support, under G.S. 7B-1110(e), the trial court could not award attorney's fees to the mother for the termination of parental rights portion of the trial without taxing the costs to the father, which it failed to do. Burr v. Burr, 153 N.C. App. 504, 570 S.E.2d 222 (2002).

An order terminating parental rights is a "nullity" when signed by a judge other than the one who presided over the hearing. In re Savage, 163 N.C. App. 195, 592 S.E.2d 610 (2004).

Delay in Entering Termination Order Requires Prejudice for Reversal. - Trial court erred by not entering its termination order within the statutory time frame, but reversal was not required since the parents did not show how they were prejudiced by the delay. In re D.R., 172 N.C. App. 300, 616 S.E.2d 300 (2005).

Delay in Filing Termination Order. - Father was required to show prejudice from a trial court's delay in filing its termination order, but his sole argument was that the five-month delay prejudiced him by the delay of his right to appeal and to achieve finality in the relationship with his daughter before he faced a potentially long incarceration; in light of the father's continuous incarceration since before the termination hearing, there was insufficient prejudice to warrant a new trial. In re S.B.M., 173 N.C. App. 634, 619 S.E.2d 583 (2005).

Trial court's failure to timely enter its adjudication and disposition order in a termination of parental rights action did not warrant reversal because that would only further delay the determination regarding the children's custody in opposition to the intent of G.S. 7B-1109(e) and G.S. 7B-1110(a). In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005).

Trial court reversibly erred in failing to enter an order terminating a mother's parental rights over her children until over 180 days after the termination hearing, in violation of G.S. 7B-1109(e) and G.S. 7B-1110(a), because the long delay was highly prejudicial to the mother, the children, and the foster parent. In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424 (2005).

Trial court erred in terminating a mother's parental rights because its order was internally inconsistent and thus, unreviewable; there were contradictory findings as to the mother's mental health care and her domestic violence issues, and the factor of financial assistance to potential adoptive parents seemed to outweigh the close emotional bonds between the mother and children and her efforts to regain custody. In re A.B., 239 N.C. App. 157, 768 S.E.2d 573 (2015).

Order Internally Inconsistent. - Trial court erred in terminating a mother's parental rights because the contradictory nature of its findings of fact and conclusions of law prohibited the court of appeals from adequately determining if they supported its conclusions of law that the mother failed to make reasonable progress toward correcting the conditions that led to the removal of the children from her care and custody and terminating her parental rights was in the children's best interests. In re A.B., 239 N.C. App. 157, 768 S.E.2d 573 (2015).

Order Preferring Child's Adoption by Foster Parents to Placement With Relatives. - It was not an abuse of discretion, in a termination of parental rights proceeding, for a trial court to find that the subject child's adoption by the child's foster parents better served the child's best interests than placement of the child with the child's relatives because the court (1) made findings regarding the relevant provisions of G.S. 7B-1110(a) and G.S. 7B-1100, (2) made extensive findings as to the relative situations of the foster parents and the child's relatives, and (3) specifically provided the court's reasons for determining that the child's best interests would be served by termination of parental rights and subsequent adoption by the child's foster parents, finding the foster parents had provided the child with a safe, stable, home, and the relatives did not timely present themselves in a reasonable time to provide the child a safe permanent home. In re D.R.F., 204 N.C. App. 138, 693 S.E.2d 235 (2010), review denied, 705 S.E.2d 358, 2010 N.C. LEXIS 1041 (2010), review dismissed, 705 S.E.2d 359 (2010), review denied 2010 N.C. LEXIS 1041 (2010).

Motion to Reopen on Remand Properly Denied. - Mere speculation that some facts might have changed in the 18 months since the trial court originally heard evidence was insufficient to show the trial court abused its discretion in denying the mother's motion to reopen on remand; the trial court was able to make the required findings concerning the likelihood of the child's adoption from the evidence originally presented and the new findings satisfied the appellate court's mandate. In re S.M.M., 374 N.C. 911, 845 S.E.2d 8 (2020).

Applied in In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005); In re S.R.G., 195 N.C. App. 79, 671 S.E.2d 47 (2009); In re S.R., 207 N.C. App. 102, 698 S.E.2d 535 (2010), review denied, 705 S.E.2d 371, 2010 N.C. LEXIS 1015 (2010); In re T.J.F., 230 N.C. App. 531, 750 S.E.2d 568 (2013); 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 McLemore, 139 N.C. App. 426, 533 S.E.2d 508 (2000); In re Brown, 141 N.C. App. 550, 539 S.E.2d 366 (2000); 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); In re Hardesty, 150 N.C. App. 380, 563 S.E.2d 79 (2002); In re Pierce, 356 N.C. 68, 565 S.E.2d 81 (2002); In re Anderson, 151 N.C. App. 94, 564 S.E.2d 599 (2002); In re Locklear, 151 N.C. App. 573, 566 S.E.2d 165 (2002); In re Yocum, 158 N.C. App. 198, 580 S.E.2d 399 (2003); In re V.L.B., 168 N.C. App. 679, 608 S.E.2d 787 (2005), cert denied, - N.C. - , 614 S.E.2d 924 (2005); 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 A.C.F., 176 N.C. App. 520, 626 S.E.2d 729 (2006); In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); A Child's Hope, LLC v. Doe, 178 N.C. App. 96, 630 S.E.2d 673 (2006); In re S.N., 180 N.C. App. 169, 636 S.E.2d 316 (2006); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re C.T., 182 N.C. App. 472, 643 S.E.2d 23 (2007); In re J.S.B., 183 N.C. App. 192, 644 S.E.2d 580 (2007); In re A.H., 183 N.C. App. 609, 644 S.E.2d 635 (2007); 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); In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007); In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008); In re D.D., - N.C. App. - , - S.E.2d - (June 16, 2009); In re L.H., 210 N.C. App. 355, 708 S.E.2d 191 (2011); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016).


§ 7B-1111. Grounds for terminating parental rights.

  1. The court may terminate the parental rights upon a finding of one or more of the following:
    1. The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.
    2. The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. No parental rights, however, shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
    3. The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent has for a continuous period of six months immediately preceding the filing of the petition or motion willfully failed to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.
    4. One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by the decree or custody agreement.
    5. The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights, done any of the following:
      1. Filed an affidavit of paternity in a central registry maintained by the Department of Health and Human Services. The petitioner or movant shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and the Department's certified reply shall be submitted to and considered by the court.
      2. Legitimated the juvenile pursuant to provisions of G.S. 49-10, G.S. 49-12.1, or filed a petition for this specific purpose.
      3. Legitimated the juvenile by marriage to the mother of the juvenile.
      4. Provided substantial financial support or consistent care with respect to the juvenile and mother.
      5. Established paternity through G.S. 49-14, 110-132, 130A-101, 130A-118, or other judicial proceeding.
    6. That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that the incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, intellectual disability, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.
    7. The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B-500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.
    8. The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home; or has committed murder or voluntary manslaughter of the other parent of the child. The petitioner has the burden of proving any of these offenses in the termination of parental rights hearing by (i) proving the elements of the offense or (ii) offering proof that a court of competent jurisdiction has convicted the parent of the offense, whether or not the conviction was by way of a jury verdict or any kind of plea. If the parent has committed the murder or voluntary manslaughter of the other parent of the child, the court shall consider whether the murder or voluntary manslaughter was committed in self-defense or in the defense of others, or whether there was substantial evidence of other justification.
    9. The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home.
    10. Where the juvenile has been relinquished to a county department of social services or a licensed child-placing agency for the purpose of adoption or placed with a prospective adoptive parent for adoption; the consent or relinquishment to adoption by the parent has become irrevocable except upon a showing of fraud, duress, or other circumstance as set forth in G.S. 48-3-609 or G.S. 48-3-707; termination of parental rights is a condition precedent to adoption in the jurisdiction where the adoption proceeding is to be filed; and the parent does not contest the termination of parental rights.
    11. The parent has been convicted of a sexually related offense under Chapter 14 of the General Statutes that resulted in the conception of the juvenile.
  2. The burden in these proceedings is on the petitioner or movant to prove the facts justifying the termination by clear and convincing evidence.

History

(1977, c. 879, s. 8; 1979, c. 669, s. 2; 1979, 2nd Sess., c. 1088, s. 2; c. 1206, s. 2; 1983, c. 89, s. 2; c. 512; 1985, c. 758, ss. 2, 3; c. 784; 1991 (Reg. Sess., 1992), c. 941, s. 1; 1997-390, ss. 1, 2; 1997-443, s. 11A.118(a); 1998-202, s. 6; 1998-229, ss. 11, 28; 1999-456, s. 60; 2000-183, s. 11; 2001-208, s. 6; 2001-291, s. 3; 2001-487, s. 101; 2003-140, s. 3; 2005-146, s. 1; 2007-151, s. 1; 2007-484, s. 26(a); 2012-40, s. 1; 2013-129, s. 35; 2018-47, s. 2.)

Editor's Note. - This section was originally enacted as G.S. 7B-1110. 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 subdivision (a)(5) by Session Laws 2013-129, s. 35, applicable to actions filed or pending on or after October 1, 2013.

Session Laws 2018-47, s. 15, provides: "This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 2, effective October 1, 2018, and applicable to proceedings commenced on or after that date.

Effect of Amendments. - Session Laws 2012-40, s. 1, effective October 1, 2012, added subdivision (a)(11).

Session Laws 2013-129, s. 35, effective October 1, 2013, added "done any of the following" at the end of the introductory paragraph of subdivision (a)(5); made stylistic and punctuation changes at the end of sub-subdivisions (a)(5)a, (a)(5)b, and (a)(5)c; in sub-subdivision (a)(5)a, substituted "Filed an affidavit of paternity" for "Established paternity judicially or by affidavit which has been file" and "petitioner or movant" for "court," deleted "shall incorporate into the case record" preceding "the Department's certified," and added "shall be submitted to and considered by the court"; inserted "G.S. 49-12.1" in sub-subdivision (a)(5)b; and added sub-subdivision (a)(5)e. For applicability, see editor's note.

Session Laws 2018-47, s. 2, effective October 1, 2018, in subsection (a), substituted "No parental rights, however" for "Provided, however, that no parental rights" at the beginning of the second sentence of subdivision (a)(2), substituted "parent has for a continuous period of six months immediately preceding the filing of the petition or motion" for "parent, for a continuous period of six months next preceding the filing of the petition or motion" in the middle of subdivision (a)(3), substituted "the decree" for "said decree" near the end of subdivision (a)(4), substituted 'Services. The" for "Services; provided, the" near the middle of sub-subdivision (a)(5)a., and, in subdivision (a)(6), substituted "the incapability" for "such incapability" near the end of the first sentence, and substituted "intellectual disability" for "mental retardation" near the middle of the second sentence; and, in subsection (b), substituted "these" for "such," "is on" for "shall be upon," and "the termination" for "such termination." For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1978 family law, see 57 N.C.L. Rev. 1084 (1979).

For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

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 survey of 1981 family law, see 60 N.C.L. Rev. 1379 (1982).

For survey of 1982 law relating to family law, see 61 N.C.L. Rev. 1155 (1983).

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, "Termination of Parental Rights," see 21 Wake Forest L. Rev. 431 (1986).

For note, "Minimizing the Putative Father's Rights: In re Adoption of Clark," see 68 N.C. L. Rev. 1257 (1990).

For note: "The Established Standard for Fathers Who Have Acknowledged Paternity and Who Are Seeking Custody of Their Illegitimate Child(ren): Rosero v. Blake, 357 N.C. 193 (2003)," see 26 N.C. Cent. L.J. 116 (2003).

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, "Preserving Your Right to Parent: The Supreme Court of North Carolina Addresses Unmarried Fathers' Due Process Rights in In Re Adoption of S.D.W.," see 94 N.C.L. Rev. 723 (2016).

For comment, "N.C. Gen. Stat. § 48-3-601 and N.C. Gen. Stat. § 7B-1111: A Putative Father's Right to Be a Father," see 41 Campbell L. Rev. 201 (2019).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Constitutionality - Former G.S. 7A-289.32(2). - Former G.S. 7A-289.32(2) (see now this section), permitting the termination of parental rights if a child is neglected, was not unconstitutionally vague, but is sufficiently definite to be applied in a uniform manner to protect both the State's substantial interest in the welfare of minor children and the parents' fundamental right to the integrity of the family unit. In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236 (1981).

Former G.S. 7A-289.32(2) (see now this section) was 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).

Former G.S. 7A-289.32(2) (see now this section) was not unconstitutionally vague, because the definition of a neglected child is clearly set out in G.S. 7A-517(21) [see now G.S. 7B-101(15)]. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982).

Former G.S. 7A-289.32(2) (see now this section) was not unconstitutionally vague, nor is it violative of equal protection. In re Wright, 64 N.C. App. 135, 306 S.E.2d 825 (1983).

The standard of neglect to be applied under former G.S. 7A-289.32(2) (see now this section) was not unconstitutionally vague. In re Norris, 25 N.C. App. 269, 310 S.E.2d 25 (1983), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984).

Former G.S. 7A-289.32(2) (see now this section) and former G.S. 7A-517(21) do 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).

Same - Former G.S. 7A-289.32(3). - Former G.S. 7A-289.32(3) (see now this section) was 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).

Same - Former G.S. 7A-289.32(4). - Former G.S. 7A-289.32(4) (see now this section), which permits the termination of parental rights for failure of the parent to pay a reasonable portion of a child's foster care costs for six months preceding the filing of the petition, is not unconstitutionally vague, and does not violate the equal protection clause by discriminating among persons similarly situated, since it applies to all parents equally and allows due consideration of their specific individual financial circumstances. In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236 (1981).

Former G.S. 7A-289.32(4) (see now this section), which permits termination when a child is in the custody of a department of social services and the parent has failed to pay a reasonable portion of the cost of child care for six months preceding filing of the petition, is not unconstitutionally vague and overbroad, since the phrase "reasonable portion of the cost of care for the child" was, by all normal standards, understandable by people of common intelligence without any necessity of guessing as to its meaning or differing as to its application, contains words of such common usage and understanding as to give parents notice of their responsibilities and of the type of conduct which is condemned, and provides boundaries sufficiently distinct that judges may interpret and administer it uniformly. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981).

There is no constitutional defect for vagueness in former G.S. 7A-289.32(4) (see now this section). In re Bradley, 57 N.C. App. 475, 291 S.E.2d 800 (1982).

Former G.S. 7A-289.32(4) (see now this section) was not unconstitutionally vague. It is sufficiently definite to be applied in a uniform manner to protect both the State's substantial interest in the welfare of minor children and the parents' fundamental right to the integrity of their family unit. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982).

Same - Former G.S. 7A-289.32(7) (see now this section). - Former G.S. 7A-289.32(7) (see now this section), which provides for the termination of parental rights upon a showing that a child's parents are mentally incapable of providing for the child, is not unconstitutional. It does not violate the equal protection clause, nor does it deny due process. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Due Process. - Conduct inconsistent with a parent's protected status, which need not rise to the statutory level warranting termination of parental rights, would result in application of the "best interest of the child" test without offending the Due Process Clause. Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).

Subject Matter Jurisdiction. - Trial court had subject matter jurisdiction over a case involving termination of a mother's parental rights to her son, and the trial court did not err in denying the mother's motion to stay the termination proceeding pending resolution of her appeal of a prior custody order, because case law established that the trial court retained jurisdiction to terminate parental rights during the pendency of the custody order appeal and, where a termination order is entered while a prior custody order is pending, the termination order necessarily renders the pending appeal moot. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).

Trial court had jurisdiction to terminate a mother's parental rights because it had jurisdiction over the underlying neglect and dependency action and issued a valid custody order to the county department of social services, giving it standing to file the petitions for termination of parental rights pursuant to G.S. 7B-1103(a)(3); a summons was issued a day after the juvenile petitions were filed, and although the mother was not served with the summonses until after their expiration, she made a general appearance in the action before the trial court at the non-secure custody hearings, thereby waiving any objection to personal jurisdiction. In re S'N.A.S., 201 N.C. App. 581, 686 S.E.2d 917 (2009).

Trial court lacked subject matter jurisdiction to grant a mother's petition to terminate respondent's parental rights pursuant to this section; the trial court erred in concluding that an Indiana court relinquished jurisdiction to North Carolina's courts by entering an order in the Indiana Action dismissing the paternal grandparents' motion for visitation rights. In re J.D., 234 N.C. App. 342, 759 S.E.2d 375 (2014).

Father failed to show that the trial court lacked subject matter jurisdiction to terminate his parental rights where it was undisputed that the child's mother, the father, and the child no longer resided in Delaware when the county department of social services (DSS) filed the juvenile petition, and initial information that the child did not reside in North Carolina was superseded by more accurate information that the child had resided in the state for more than six months before DSS filed the juvenile petition. Thus, North Carolina was the child's home state. In re L.T., 374 N.C. 567, 843 S.E.2d 199 (2020).

A severance proceeding is not essentially the same as a criminal proceeding, nor does a parent whose rights are sought to be terminated enjoy the same rights as a person accused of committing a crime, including the right to file an "Anders" brief. In re Harrison, 136 N.C. App. 831, 526 S.E.2d 502 (2000).

Construction of Section. - G.S. 7B-1111(a)(2) deleted the "diligent efforts" requirement of former G.S. 7A-289.32(3), indicating an intent by the legislature to eliminate the requirement that the Department of Social Services provide services to a parent before termination of parental rights can occur; thus a determination that the department made diligent efforts to provide services to a parent is no longer a condition precedent to terminating parental rights. In re Frasher, 147 N.C. App. 513, 555 S.E.2d 379 (2001).

Construction with Other Sections. - It is not necessary for there to be evidence of mental retardation, mental illness, organic brain syndrome, or some other degenerative mental condition, which would be required in a termination of parental rights determination pursuant to former G.S. 7A-289.32(7), for the evidence to be sufficient in a former G.S. 7A-657 review hearing to evince a lack of ability to perform mentally that impedes a parent's child care decisions. In re Reinhardt, 121 N.C. App. 201, 464 S.E.2d 698 (1995), overruled in part, 347 N.C. 339, 493 S.E.2d 418 (1997).

Appellate court dismissed a mother's appeal from the trial court's order which found that her child was neglected and set adoption as the permanent plan for the child because the appeal became moot when the trial court entered a subsequent order terminating the mother's parental rights. In re V.L.B., 164 N.C. App. 743, 596 S.E.2d 896 (2004).

Quashing Subpoena Proper. - Mother failed to show that the trial court abused its discretion in quashing a subpoena for her child's testimony because the guardian ad litem (GAL) demonstrated that the subpoena was unreasonable or oppressive; the GAL presented evidence regarding the child's mental health condition and his extreme distress during and following contacts with the mother regarding her desire that he testify. In re A.H., 250 N.C. App. 546, 794 S.E.2d 866 (2016), review denied, 2017 N.C. LEXIS 294 (2017).

Offer of Proof. - Mother's testimony at the subpoena hearing provided a sufficient informal offer of proof the trial court could rely upon in excluding a formal offer of proof because the prior testimony established the essential content or substance of the excluded testimony; the trial court, after having heard and considered the mother's proffered information at a prior hearing, did not abuse its discretion in rejecting the mother's proffer at the disposition hearing. In re A.H., 250 N.C. App. 546, 794 S.E.2d 866 (2016), review denied, 2017 N.C. LEXIS 294 (2017).

Appeal With Regard to Deceased Child Not Moot. - Mother's appeal of termination of parental rights as to her deceased child was not moot because the order terminating her rights as to that child could have a bearing on subsequent proceedings to terminate her rights as to her other child. In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005).

Indian Child Welfare Act Compared. - In North Carolina, grounds for termination of a parent's parental rights must be supported by clear and convincing evidence, while a termination of parental rights under the Indian Child Welfare Act, 25 U.S.C.S. § 1912 (2002), requires evidence which justifies termination beyond a reasonable doubt; to meet the federal requirement, the trial court must conclude beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damages to the child. In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002).

Grounds for Termination. - In a department of social services petition to terminate a father's parental rights, the trial court was only required, under G.S. 7B-1111(a) to find that one statutory ground for termination existed in order to proceed to the dispositional phase and decide if termination was in the children's best interests. In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003).

Proceeding for termination of parental rights requires the trial court to conduct a two part inquiry; G.S. 7B-1109(e) directs that the court first shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in this section, which authorize the termination of parental rights of the respondent. Disposition is governed by G.S. 7B-1110, which provides in relevant part that upon a finding that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated under subsection (a) of this section. In re Baker, 158 N.C. App. 491, 581 S.E.2d 144 (2003).

Where the court merely recited the testimony of witnesses and did not make the required findings of fact, further findings of fact and a determination of the father's parental fitness was needed if he was to be denied all contact with his daughter. Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74 (2003).

Termination of parental rights proceeding is a two-stage process: the trial court first determines whether sufficient grounds exist under G.S. 7B-1111 to warrant termination; if the trial court determines that any one of the grounds for termination listed in G.S. 7B-1111 exists, the trial court may then terminate parental rights consistent with the best interests of the child. In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (2004), aff'd, 359 N.C. 405, 610 S.E.2d 199 (2005).

Allowing the trial court to terminate the mother's parental rights during the pendency of the custody review order appeal did not prejudice the mother's rights, as the termination proceedings required that a ground for termination under G.S. 7B-1111 be established and the proceedings afforded the mother an opportunity to challenge the termination order on appeal under G.S. 7B-1113. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Termination of the mother's parental rights was upheld because the unchallenged grounds for termination of the mother's parental rights supported the trial court's termination order. In re J.M.W., 179 N.C. App. 788, 635 S.E.2d 916 (2006).

Trial court's order terminating a mother's parental rights was proper based on findings that the older of the two children was abused and neglected, the younger child was neglected, the mother willfully abandoned the children for six consecutive months preceding the filing of the petition, the mother left the children in foster care for more than 12 months without showing that reasonable progress had been made to correct the conditions that led to the children's removal, the children were dependent, and the mother committed and was convicted of a felony assault resulting in serious bodily injury to the older child. In re T.J.D.W., 182 N.C. App. 394, 642 S.E.2d 471 (2007), review denied, 361 N.C. 568, 651 S.E.2d 562 (2007).

G.S. 7B-1111(a)(2) could not be used as a ground for terminating a mother's parental rights because failure to make reasonable progress was not alleged in the termination petition. In re S.R.G., 195 N.C. App. 79, 671 S.E.2d 47 (2009).

Findings of fact, focusing on what occurred through early 2007, did not explain why the trial court reached its determination that the parents' efforts in 2006 through April 2008 - the date of the filing of the petition giving rise to the order on appeal - did not amount to reasonable progress; while petitioner mother's brother focused on evidence of domestic violence and alcohol consumption in 2008, the trial court made no findings of fact as to that evidence, but discussed incidents that occurred in early 2006. Without findings as to the reasonableness, adequacy, or inadequacy of the 2006 through 2008 efforts, the court could not determine that the trial court's conclusions were supported by its findings of fact. In re F.G.J., 200 N.C. App. 681, 684 S.E.2d 745 (2009).

Trial court's conclusion that one statutory ground for termination existed was sufficient in and of itself to support termination of a father's parental rights; as such, the supreme court did not need not to address the father's arguments regarding another ground for termination. In re O.W.D.A., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Failure to Give Notice of Grounds for Termination. - 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).

Obligation of Trial Court to Consider Best Interests. - Having adjudicated the father's willful abandonment of the child, the trial court was obliged to determine whether it was in the child's best interests to terminate the father's parental rights, and to do so without regard to any competing interest of him. In re K.N.K., 374 N.C. 50, 839 S.E.2d 735 (2020).

Standard of Review. - On review, the Court of Appeals must determine whether the trial court's findings of fact were based on clear, cogent and convincing evidence, and whether those findings of fact supported a conclusion that parental termination should occur on the grounds stated in this section. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996).

Scope of Review on Appeal. - Where it was determined on appeal that a mother's parental rights to her minor child were properly terminated pursuant to G.S. 7B-1111(a)(6), issues raised on appeal with respect to other termination grounds did not have to be addressed. In re K.O., 223 N.C. App. 420, 735 S.E.2d 369 (2012).

Mother challenges four of the trial court's findings of fact as unsupported, but as the challenged findings were not necessary to support the trial court's conclusion that she willfully left the child in foster care for more than 12 months without making reasonable progress to correct the conditions that led to her removal, the challenged findings did not need to be reviewed on appeal. In re C.J., 373 N.C. 260, 837 S.E.2d 859 (2020).

No right to file "Anders" brief. - Counsel for a parent appealing from a juvenile court's severance order has no right to file an "Anders" brief. In re Harrison, 136 N.C. App. 831, 526 S.E.2d 502 (2000).

No-Merit Brief Reviewed. - Termination of the mother's parental rights was upheld; court reviewed the issues identified by counsel in a no-merit brief and found the trial court's order was supported by clear evidence and based on proper legal grounds including neglect and failure to pay a reasonable portion of costs for the child's care. In re M.C.T.B., - N.C. - , - S.E.2d - (Mar. 19, 2021).

The definition of mental retardation adopted by our legislature in G.S. 122C-3(22) represents the plain meaning of the term "mental retardation" used in former G.S. 7A-289.32(7). In re LaRue, 113 N.C. App. 807, 440 S.E.2d 301 (1994).

Burden on the Petitioner. - The burden is on the petitioner to prove the facts justifying termination by clear and convincing evidence. In re Nolen, 117 N.C. App. 693, 453 S.E.2d 220 (1995).

Proper Exercise of Police Power. - It is not an unreasonable or arbitrary exercise of the police power for the State to intervene between parent and child where that child is helpless and defenseless and is endangered by parental neglect, inattention, or abuse. In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236 (1981).

Findings of Fact And Conclusions of Law. - By its own terms, G.S. 7B-1109(e) applies equally to instances in which the trial court adjudicates the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111; consequently, G.S. 7B-1109(e) places the same duty on the trial court to find the facts specially and state separately its conclusions of law thereon, regardless of whether the court is granting or denying a petition to terminate parental rights. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

Finding of Any One of the Enumerated Grounds Is Sufficient to Support Termination. - Former G.S. 7A-289.32 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Pierce, 67 N.C. App. 257, 312 S.E.2d 900 (1984); Herrell v. Adcock, 69 N.C. App. 222, 316 S.E.2d 347 (1984); In re Tyson, 76 N.C. App. 411, 333 S.E.2d 554 (1985); In re Stewart, 82 N.C. App. 651, 347 S.E.2d 495 (1986); Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988); Herell v. Taylor, 97 N.C. App. 57, 387 S.E.2d 230 (1990).

Because the appellate court found grounds for termination of a mother's parental rights were properly established pursuant to G.S. 7B-1111(a)(2), the court did not need to address the mother's further arguments regarding termination pursuant to G.S. 7B-1111(a)(1) and G.S. 7B-1111(a)(3). 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).

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).

Findings Insufficient. - Trial court's evidentiary findings did not meet the requirements of G.S. 1A-1, N.C. R. Civ. P. 52(a)(1), as applied to adjudicatory orders under G.S. 7B-1109(e) and G.S. 7B-1110(c), because the trial court found none of the ultimate facts required to support an adjudication of the existence or nonexistence of the circumstances in G.S. 7B-1111. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

Findings Not Prejudicial. - Finding that counsel conceded certain other grounds for termination did not prejudice the father, as there were unrelated findings of fact that sufficiently supported the termination of the father's rights under a different ground. In re A.W, 237 N.C. App. 209, 765 S.E.2d 111 (2014).

Evidence Sufficient to Support Termination. - Pursuant to G.S. 7B-1111(a)(2), there was sufficient evidence to support the termination of a mother's parental rights over her minor child, as the evidence indicated that she willfully left the child in placement outside of the home for more than 12 months and she failed to make reasonable progress to correct the conditions that led to his removal. In re D.C., 225 N.C. App. 327, 737 S.E.2d 182 (2013).

Pursuant to G.S. 7B-1111, as the trial court did not err in terminating a mother's parental rights on at least one ground for termination, an appellate court did not need to address the mother's arguments regarding the other grounds. In re D.C., 225 N.C. App. 327, 737 S.E.2d 182 (2013).

There was a sufficient basis in the record for terminating the father's parental rights that had nothing to do with poverty; his failure to obtain custody appeared primarily to have been the result of his own inaction, and thus poverty could not have been the sole reason for terminating his parental rights. In re A.W, 237 N.C. App. 209, 765 S.E.2d 111 (2014).

Dual Burden of Proof Where Child Was American Indian. - Where a minor child's status as a Native American made a termination proceeding under this Article also subject to the provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.), the federal provision did not require that the North Carolina statutory grounds to terminate parental rights be proven beyond a reasonable doubt. Rather, a dual burden of proof was created in which the state provisions and federal provisions had to be satisfied separately; i.e., the state grounds for termination had to be supported by clear and convincing evidence, while the federal law required evidence which justified termination beyond a reasonable doubt. In re Bluebird, 105 N.C. App. 42, 411 S.E.2d 820 (1992).

Separate Hearings Not Required. - Although the court is required to apply different evidentiary standards at each of the two stages of adjudication and disposition, there is no requirement that the stages be conducted at two separate hearings. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

The welfare or best interest of the child is always to be treated as the paramount consideration to which even parental love must yield. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Although severing parental ties is a harsh judicial remedy, the best interests of the children must be considered paramount. Herrell v. Adcock, 69 N.C. App. 222, 316 S.E.2d 347 (1984).

The court is not required to terminate parental rights under any circumstances. Forsyth County Dep't of Social Servs. v. Roberts, 22 N.C. App. 658, 207 S.E.2d 368 (1974); In re Godwin, 31 N.C. App. 137, 228 S.E.2d 521 (1976).

Upon a finding that grounds exist to authorize termination, the trial court is never required to terminate parental rights under any circumstances, but is merely given the discretion to do so. In re Tyson, 76 N.C. App. 411, 333 S.E.2d 554 (1985).

But Has Discretionary Authority to Do So. - The court has the authority to terminate parental rights in the exercise of its discretion. Forsyth County Dep't of Social Servs. v. Roberts, 22 N.C. App. 658, 207 S.E.2d 368 (1974); In re Godwin, 31 N.C. App. 137, 228 S.E.2d 521 (1976).

When the district court concluded that child was neglected, it was within the court's discretion, taking into account the best interests of the child, as to whether parental rights should be terminated. In re Webb, 70 N.C. App. 345, 320 S.E.2d 306 (1984), aff'd, 313 N.C. 322, 327 S.E.2d 879 (1985).

Former G.S. 7A-289.30 and G.S. 7A-289.31, when read together, mean that in the adjudication stage, the petitioner must prove clearly, cogently, and convincingly the existence of one or more of the grounds for termination listed in this section. Once the petitioner has proven this ground by this standard, it has met its burden within the statutory scheme of former G.S. 7A-289.30 and 7A-289.31. The petitioner having met his burden of proof at the adjudication stage, the court then moves on to the disposition stage, where the court's decision to terminate parental rights is discretionary. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

At the adjudication stage, petitioner is required to prove the existence of grounds for termination, listed in this section, by clear, cogent and convincing evidence, pursuant to former G.S. 7A-289.30(e), while at the disposition stage, the court's decision as to whether to terminate parental rights is discretionary. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

Once a petitioner meets its burden of proof at the adjudicatory stage, the court's decision to terminate the parental rights is discretionary. In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

When Termination Order Will Be Affirmed. - If a conclusion that grounds exist under any subdivision of this section is supported by findings of fact based on clear, cogent, and convincing evidence, the order terminating parental rights must be affirmed. In re Ballard, 63 N.C. App. 580, 306 S.E.2d 150 (1983), rev'd on other grounds, 311 N.C. 708, 319 S.E.2d 227 (1984); In re Swisher, 74 N.C. App. 239, 328 S.E.2d 33 (1985).

Termination Order Reversed. - Order terminating a father's parental rights, which was entered under G.S. 7B-1111(a)(6) on the basis of the father's 20-year history of substance abuse, was reversed; the trial court failed to appoint a guardian ad litem to represent the father's interests as required by G.S. 7B-1101(1), and regardless of whether that failure prejudiced the father, remand was required for appointment of a guardian ad litem and for rehearing. In re S.B., 166 N.C. App. 488, 602 S.E.2d 691 (2004).

Order terminating a father's parental rights was improper because it did not identify any G.S. 7B-1111(a) grounds for termination and did not indicate the evidentiary standard under which the trial court made its adjudicatory findings of fact; without an identified basis for adjudication, effective review of the termination order was precluded, and without a finding of willfulness, there was insufficient basis for a finding of abandonment, and the father's incarceration alone was insufficient to support the termination order. Bolick v. Brizendine (In re D.R.B.), 182 N.C. App. 733, 643 S.E.2d 77 (2007).

Order terminating a father's parental rights was vacated because the trial court failed to make specific findings of fact or to state in its conclusions of law that the father's actions were willful, and, thus the findings did not conclusively establish grounds for termination of parental rights pursuant to G.S. 7B-1111(a); without an identified basis for the adjudication under G.S. 7B-1109(e), effective review of the termination order was precluded. In re T.M.H., 186 N.C. App. 451, 652 S.E.2d 1 (2007), review denied, stay denied, 362 N.C. 87, 657 S.E.2d 31 (2007.

Trial court's corrected order terminating a mother's parental rights was vacated because the trial court was without jurisdiction pursuant to G.S. 1A-1, N.C. R. Civ. P. 60(a) to add an omitted finding of fact, which was substantive, when the presence or absence of the finding of fact that the mother lacked an appropriate alternative child care arrangement altered the effect of the order; when, the trial court relies upon a single ground to terminate parental rights, the presence or absence of a required finding of fact must be substantive within the scope of that order. In re C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240 (2009).

Order did not support the conclusion of law that sufficient grounds existed pursuant to G.S. 7B-1111(a)(6) to terminate a mother's parental rights because the order contained no finding of fact that the mother lacked an appropriate alternative child care arrangement. In re C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240 (2009).

Trial court erred in terminating a mother's parental rights to her child on the ground that the mother failed to make reasonable progress because the evidence indicated that her criminal matter would be disposed of quite soon; no evidence showed that the mother acted in any way to delay the criminal matters or done anything other than follow her attorney's instructions. In re S.D., 243 N.C. App. 65, 776 S.E.2d 862 (2015).

Trial court erred in terminating a mother's parental rights to her child on the ground that the mother failed to make reasonable progress because while the mother could benefit from more frequent treatment, the evidence showed that she complied with the frequency of treatment required of her. In re S.D., 243 N.C. App. 65, 776 S.E.2d 862 (2015).

Trial court erred in terminating a mother's parental rights to her child on the ground that the mother failed to make reasonable progress because a factor that could support the trial court's conclusion was the mother's meager income, but poverty alone could not be a basis for termination of parental rights. In re S.D., 243 N.C. App. 65, 776 S.E.2d 862 (2015).

Evidence was sufficient to support termination of parental rights, where mother did not attend any counseling sessions, had three criminal convictions, failed to attend some of the scheduled visits with the children, and willfully paid no child support. In re Becker, 111 N.C. App. 85, 431 S.E.2d 820 (1993).

Termination of a father's parental rights was supported by evidence which showed that the father's history of domestic violence toward the child's mother led to the child's removal, that the father agreed to participation in a domestic violence program but failed to complete that program, and failed to show that different counseling he participated in addressed the domestic violence issue. In re D.M., 171 N.C. App. 244, 615 S.E.2d 669 (2005), aff'd, 360 N.C. 162, 622 S.E.2d 494 (2005).

Mentally retarded father's failure to provide an alternative placement for the father's child, coupled with the father's undisputed lack of capacity to care for the child, was sufficient under G.S. 7B-1111(a)(6) for termination of parental rights. In re L.H., 210 N.C. App. 355, 708 S.E.2d 191 (2011).

Petition Sufficient to Give Notice. - Although the termination of parental rights petition did not specifically refer to G.S. 7B-1111(a)(6), the petition, which contained language directly paralleling G.S. 7B-1111(a)(6), provided the mother with sufficient notice of the acts, omissions, or conditions on which the petition was based. In re A.H., 183 N.C. App. 609, 644 S.E.2d 635 (2007).

The Department of Social Services provided sufficient evidence to withstand motion to dismiss termination proceedings, where the father willfully left the minor children in foster care for more than 18 months and the father had been incarcerated two times during the period that the children were in foster care. In re Becker, 111 N.C. App. 85, 431 S.E.2d 820 (1993).

Remoteness of evidence goes to its weight, not to its admissibility. In re McDonald, 72 N.C. App. 234, 324 S.E.2d 847 (1984), cert. denied, 314 N.C. 115, 332 S.E.2d 490 (1985).

Evidence concerning respondent's actions after the petition was filed was clearly relevant to determine the existence of the factors justifying termination under this section; in cases concerning termination of parental rights based upon neglect, the trial court must consider evidence of changes in conditions up to the time of the hearing. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676 (1989).

The proper time for appointing a guardian ad litem under G.S. 7B-1101, where grounds for termination are based on G.S. 7B-1111(a)(6), is upon the filing of the petition. In re D.S.C., 168 N.C. App. 168, 607 S.E.2d 43 (2005).

Trial court erred in failing to appoint a guardian ad litem for a mother in an action to terminate her parental rights; under the version of G.S. 7B-1101 in effect when the petition was filed, a guardian was required where it was alleged that the mother was physically disabled pursuant to G.S. 7B-1111(a)(6). In re D.S.C., 168 N.C. App. 168, 607 S.E.2d 43 (2005).

Although the mother's parental rights were not terminated for dependency under G.S. 7B-1111(a)(6), the trial court erred in failing to appoint the mother a guardian ad litem under former G.S. 7B-1101; the guardian ad litem requirement was triggered because the mother's mental health issues, involving, in part, bipolar disorder, were central to the termination. 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).

Trial court erred when it failed to appoint a guardian ad litem for mother pursuant to G.S. 7B-1101 after reviewing her psychological evaluation, but still considered her mental illness, even though it never mentioned G.S. 7B-1111(a)(6) as a factor in terminating her parental rights. Accordingly, the mother was entitled to a new termination hearing and the appointment of a guardian ad litem. In re T.W., 173 N.C. App. 153, 617 S.E.2d 702 (2005).

Trial court did not err by not appointing a guardian ad litem for the mother for a termination of parental rights hearing as it was not alleged, pursuant to G.S. 7B-1111(a)(6), that the mother was incapable of properly caring for her children; additionally, whether the trial court should have appointed a guardian ad litem for the mother in a prior dependency proceeding was not an issue before the court on the appeal of the termination of the mother's parental rights. 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).

While the termination of a mother's parental rights was based on G.S. 7B-1111(a)(1), (7), the original petition alleged grounds for termination pursuant to G.S. 7B-1111(a)(6), and the trial court considered the mother's substance abuse and mental illness in making that determination; therefore,G.S. 7B-1101 required appointment of a guardian ad litem for the mother, and the failure of the trial court to do so was error. In re K.R.S., 170 N.C. App. 643, 613 S.E.2d 318 (2005).

Testimony of Guardian Ad Litem Appointed for a Parent Was Properly Admitted. - Guardian ad litem appointed for mentally incompetent mother could not be prevented from testifying on issues that were against the mother's interests either on direct testimony for the department of social services or if she were testifying on behalf of the mother and the information were being elicited on cross examination. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

Earlier decision setting aside termination order did not "void" basis of subsequent adoption proceeding or earlier termination proceeding, but simply held that termination order had to be set aside since service on putative father was void. In re Clark, 95 N.C. App. 1, 381 S.E.2d 835 (1989).

Father's contention that mother should be estopped from petitioning to terminate his parental rights because she knew the grounds for termination and concealed that knowledge from him was completely without merit. In re Hunt, 127 N.C. App. 370, 489 S.E.2d 428 (1997).

Putative Father Not Precluded from Asserting Rights. - Where termination order, later held to be invalid for failure to use due diligence in ascertaining the putative father's address, was filed with an adoption petition in lieu of the affidavit required by former G.S. 48-13, a subsequently filed affidavit did not relate back to the original filing date of the petition so as to cut off the rights of the putative father who filed a legitimation petition to G.S. 49-10 before the affidavit was filed. In re Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990).

Low IQ No Excuse for Failing to Exercise Common Sense. - Mother could not use a purported IQ of 76 as a shield against the trial court's finding that the mother failed to exercise common sense by continuing to have unprotected sexual intercourse that resulted in numerous unplanned pregnancies and placed the child's welfare in jeopardy, if for no other reason than straining the mother's already limited resources, including the time and money she could devote to caring for the child. In re K.S, 183 N.C. App. 315, 646 S.E.2d 541 (2007).

The trial court did not err by issuing a written order terminating respondent's parental rights which contained language not included in its recital in open court where the findings about which respondent complained related to the "adjudication" by the trial court, pursuant to the provisions of former G.S. 7A-289.32, that grounds for termination of respondent's parental rights existed at the time of the hearing, not to the court's "disposition" pursuant to G.S. 7A-289.31 and where the order entered by the trial court was in "general conformity" to the disposition announced in open court. In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).

Reliance on Prior Court Orders. - Trial court relied partly on evidence from prior proceedings and findings in earlier orders, which was proper; a trial court may not rely solely on prior court orders and reports but must receive some oral testimony and make an independent determination regarding the evidence presented, and here the trial court took judicial notice of the record and the findings of fact appear to be based at least in part on testimony provided at the hearing, which was sufficient to show that the trial court made an independent determination regarding the evidence presented. In re T.N.H., 372 N.C. 403, 831 S.E.2d 54 (2019).

Assignments of Error Abandoned. - Mother's cursory argument concerning neglect and abandonment was predicated upon not receiving proper notice of the motion to terminate and thus, her assignment of error concerning G.S. 7B-1111 were deemed abandoned under N.C. R. App. P. 28(b)(6). 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).

Failure to Enter Written Termination Order Within 30 Days. - Where the trial court did not reduce the parental termination to writing until seven months after the termination hearing in violation of the 30-day requirement of G.S. 7B-1109(e), -1110(a), -1111(a); all parties were prejudiced, as the mother and child lost time together, the foster parents were in a state of flux, and the adoptive parents were unable to complete their family plan. In re D.S., 177 N.C. App. 136, 628 S.E.2d 31 (2006).

Failure to File Action Within 12-Month Recovery Period. - Trial court erred in terminating a mother's parental rights pursuant to G.S. 7B-1111(a)(2), as an agency filed the petition inside the statutory 12-month period for showing progress, as the period ran from the entry of the first custody order rather than from the mother's initial voluntary separation from the child. In re A.C.F., 176 N.C. App. 520, 626 S.E.2d 729 (2006).

Duration Requirement Defined. - The "for more than 12 months" requirement in G.S. 7B-1111(a)(2) means the duration of time beginning when the child was "left" in foster care or placement outside the home pursuant to a court order, and ending when the motion or petition for termination of parental rights was filed. In re A.C.F., 176 N.C. App. 520, 626 S.E.2d 729 (2006).

Removal Defined. - The legislature did not intend for any separation between a parent and a child to trigger the termination ground set forth in G.S. 7B-1111(a)(2), failure to make reasonable progress; instead, the statute refers only to circumstances where a court has entered a court order requiring that a child be in foster care or other placement outside the home. In re A.C.F., 176 N.C. App. 520, 626 S.E.2d 729 (2006).

Rights Not Properly Terminated. - Termination of the father's parental rights was reversed where the father voluntarily agreed to and completed the requirements of the case plan, and no finding had been made that the father's failure to pay child support was willful or that father willfully left the children in foster care more than 12 months without making reasonable progress toward reunification. In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006).

Termination Order Entered by Non-Presiding Judge. - Since the judge did not preside over the termination hearing, the first set of termination orders had never been properly entered and were a nullity; thus, the mother's appeal did not divest the district court of authority to enter additional orders correcting the error, and since the trial court had the authority to enter the challenged orders and the mother had not advanced any other challenges to the validity of the orders, the orders were affirmed. In re C.M.C., 373 N.C. 24, 832 S.E.2d 681 (2019).

No Error by Trial Court. - There was no possible error by the trial court and the order terminating the father's parental rights was affirmed; the order included sufficient findings, supported by clear evidence, that at least one statutory ground for termination existed, plus the trial court made appropriate findings on each of the relevant dispositional factors and did not abuse its discretion in assessing the children's best interests. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875 (2018).

Appellate Court Failure to Consider No-Merit Brief. - Appellate court erred in failing to conduct an independent review of the issues in the no-merit brief, and based on the court's careful review of the issues identified, the trial court's termination order was supported by competent evidence and based on proper legal grounds. In re L.E.M., 372 N.C. 396, 831 S.E.2d 341 (2019).

Applied in In re Reyes, 136 N.C. App. 812, 526 S.E.2d 499 (2000); 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 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 A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re D.J.E.L., 208 N.C. App. 154, 701 S.E.2d 1 (2010), review denied 706 S.E.2d 232, 2011 N.C. LEXIS 40 (2011); In re A.R.P., 218 N.C. App. 185, 721 S.E.2d 725 (2012); 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).

Cited in Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000); In re Lambert-Stowers, 146 N.C. App. 438, 552 S.E.2d 278 (2001); In re Hardesty, 150 N.C. App. 380, 563 S.E.2d 79 (2002); In re Johnston, 151 N.C. App. 728, 567 S.E.2d 219 (2002); In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65 (2002); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003); In re N. B., 163 N.C. App. 182, 592 S.E.2d 597 (2004), aff'd, - N.C. - , 614 S.E.2d 532 (2005); In re L.D.B., 168 N.C. App. 206, 617 S.E.2d 288 (2005); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re S.N.H., 177 N.C. App. 82, 627 S.E.2d 510 (2006); In re D.H., 177 N.C. App. 700, 629 S.E.2d 920 (2006); In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006); Owen v. Keeter (In re C.L.K.), 182 N.C. App. 600, 643 S.E.2d 458 (2007); In re C.M., 183 N.C. App. 398, 644 S.E.2d 630 (2007); In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429 (2007); In re L.B., 187 N.C. App. 326, 653 S.E.2d 240 (2007), aff'd, 362 N.C. 507, 666 S.E.2d 751 (2008); In re A.F.H-G, 189 N.C. App. 160, 657 S.E.2d 738 (2008); In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850 (2008); In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010); In re J.H.K., 205 N.C. App. 165, 695 S.E.2d 162 (2010); Davis v. Swan, 206 N.C. App. 521, 697 S.E.2d 473 (2010), review denied 706 S.E.2d 239, 2011 N.C. LEXIS 45 (2011); In re P.D.R., 212 N.C. App. 326, 713 S.E.2d 60 (2011), rev'd 723 S.E.2d 335, 2012 N.C. LEXIS 269 (N.C. 2012); In re H.J.A., 223 N.C. App. 413, 735 S.E.2d 359 (2012); In re B.S.O., 225 N.C. App. 541, 740 S.E.2d 483 (2013); In re D.E.G., 228 N.C. App. 381, 747 S.E.2d 280 (2013); In re D.H., 232 N.C. App. 217, 753 S.E.2d 732 (2014); In re A.N.S., 239 N.C. App. 46, 767 S.E.2d 699 (2015); S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015); In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016); In re C.R.B., 245 N.C. App. 65, 781 S.E.2d 846 (2016).

II. NEGLECT.

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).

Neglected Juvenile - Under subdivision (a)(1), a neglected juvenile is defined as a juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker, who has been abandoned, who is not provided necessary medical care, who is not provided necessary remedial care, who lives in an environment injurious to the juvenile's welfare, who has been placed for care or adoption in violation of law, G.S. 7B-101(15). In re Yocum, 158 N.C. App. 198, 580 S.E.2d 399 (2003).

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).

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).

Trial court's finding that the essential underlying issues of the neglect adjudication that concerned the father were his abuse of alcohol and illegal substances as well as housing and employment instability was supported by clear, cogent, and convincing evidence because although the direct issues that led to the adjudication of neglect primarily related to the mother, the trial court was permitted to consider indirect issues which contributed to the child's neglect and removal. In re O.W.D.A., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Court's findings supported the conclusion that grounds existed to terminate a father's parental rights because the father was able to work while incarcerated and did in fact work various jobs while incarcerated, yet, he contributed nothing to the cost of the child's care during the relevant six-month period. In re J.M., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Trial court properly terminated a mother's parental rights for neglect because the evidence included the fact that the mother had not made any progress in her parenting skills, did not believe that her children had been abused, and continued to associate with their abusers; accordingly, if returned to her care, the children would remain at risk of physical and sexual abuse, have unmet physical needs, and never heal from the trauma they had already endured. In re M.J.B., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Court properly terminated a father's parental rights because the children were previously adjudicated to be neglected and dependent juveniles, it found circumstances leading to the prior adjudication, the requirements of the father's case plan that he agreed to and was ordered to complete to remedy those conditions, and the father's failure to comply with the requirements of his case plan; both parents had expressed their plans and desires on multiple occasions to get themselves together, but each failed to follow through with services ordered by the court to help them reach their goals. In re J.E., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Court properly terminated a father's parental rights because his housing was inadequate for the children and had no running water, he made no progress to remedy that problem, the father did not provide credible evidence to support a chance of securing suitable housing, and the father had not maintained the necessary employment. In re T.M.L., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Parents' parental rights were properly terminated because the child was severely abused while she resided in the parents' care, an expert stated that the child was abused by an "adult who was concealing the truth," and the trial court made the reasonable inference that the parents worked together to develop an explanation for the child's injuries in an attempt to conceal the truth. In re A.W., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Mother's parental rights were properly terminated because there was a pattern of neglect due to housing instability, substance abuse, leaving the juveniles with inappropriate caretakers, and domestic violence; the mother and the children had resided at a homeless shelter, and after her incarceration for drug violations, she had failed to make proper arrangements for the children's care. In re N.B., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Father's parental rights were properly terminated because he did not provide support for the child, and although the father did send a letter in which he asked for the child's forgiveness, the letter in question had been his first contact with the child after her entry into state custody; as a result, the record adequately supported the trial court's finding concerning the inconsistency of the father's contacts. In re N.B., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Standard of Proof. - Because proof of both the parent's incapability to provide proper care and supervision and the parent's lack of an alternative child care arrangement is required to terminate parental rights under subsection (a)(6), a trial court may adjudicate the nonexistence of this ground by finding the absence of either element, or by finding the petitioner's failure to prove either element by clear, cogent, and convincing evidence. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

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).

Where a parent has failed or is unable to adequately provide for his child's physical and economic needs, whether it be by reason of mental infirmity or by reason of willful conduct on the part of the parent, and it appears that the parent will not or is not able to correct those inadequate conditions within a reasonable time, the court may appropriately conclude that the child is neglected. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Failure to provide a stable living environment and proper food and clothing are clearly evidence of neglect that cannot be ignored. Herrell v. Adcock, 69 N.C. App. 222, 316 S.E.2d 347 (1984).

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 G.S. 7A-517(21) [see now G.S. 7B-101(15)]. In re Black, 76 N.C. App. 106, 332 S.E.2d 85 (1985).

Nonfeasance as well as malfeasance by a parent can constitute neglect. Herrell v. Adcock, 69 N.C. App. 222, 316 S.E.2d 347 (1984).

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).

Trial court properly terminated the father's parental rights on the ground that the father neglected the father's 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).

This Article provides an appropriate forum to address the "intangible needs" issue, and protects a parent's interest in preserving the family. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Due process does not require a separate finding regarding fulfillment of a child's intangible and noneconomic needs in order to justify termination for neglect. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

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).

The fact that a parent provides love, affection and concern, although it may be relevant, should not be determinative in controversies involving child neglect and custody, in that the court could still find the child to be neglected within the meaning of the neglect and termination statutes. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent; therefore, the fact that the parent loves or is concerned about his child will not necessarily prevent the court from making a determination that the child is neglected. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Parent Subject to Termination Need Not Be Responsible for Prior Neglect Adjudication. It is not necessary that the parent whose rights are subject to termination be responsible for the prior adjudication of neglect. In re J.M.J.-J., 374 N.C. 553, 843 S.E.2d 94 (2020).

A threat of future harm is not sufficient grounds for termination of parental rights. In re Phifer, 67 N.C. App. 16, 312 S.E.2d 684 (1984).

Former G.S. 7A-289.32 (now this section) and former G.S. 7A-517(21) speak in terms of past neglect and make no provision for termination for threatened future harm. It is clear, however, that the legislature was mindful of the plight of children threatened by a risk of future neglect, as shown by the terms of G.S. 7A-544 [see now G.S. 7B-302]. Under that statute, the Department may obtain temporary custody of a child where there is a risk of neglect by the parent or guardian. This supports the position that the legislature was aware of the problem of future harm, and simply did not choose to make risk of neglect a ground for termination of parental rights. In re Phifer, 67 N.C. App. 16, 312 S.E.2d 684 (1984).

Alcohol abuse, without proof of adverse impact upon the child, is not a sufficient basis for an adjudication of termination of parental rights for neglect. In re Phifer, 67 N.C. App. 16, 312 S.E.2d 684 (1984).

A prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect. However, the sufficiency of such a prior adjudication of neglect, standing alone, to support a termination of parental rights will be unlikely when the parents have been deprived of custody for any significant period before the termination proceeding. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984).

Evidence of neglect by a parent prior to losing custody of a child, including an adjudication of such neglect, is admissible in subsequent proceedings to terminate parental rights. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

As May Neglect Occurring Prior to Previous Order Taking Custody from Parents. - In ruling upon a petition for termination of parental rights for neglect, the trial court may consider neglect of the child by its parents which occurred before the entry of a previous order taking custody from them. This is so even though the parents have not had custody of the child from the time of the prior custody order until the time of the termination proceeding. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984).

But Court Must Also Consider Changed Conditions. - Evidence of neglect by a parent prior to losing custody of a child, including an adjudication of such neglect, is admissible in subsequent proceedings to terminate parental rights. The trial court must also consider any evidence of changed conditions, in light of the evidence of prior neglect and the probability of a repetition of neglect. The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984).

Where termination of parental rights is sought upon allegations of neglect, the court may consider evidence of neglect occurring before custody has been taken from the parents, but termination may not be based solely on conditions of neglect which may have previously existed but no longer exist. The court must also consider evidence of any change in condition up to the time of the hearing, but this evidence is to be considered in light of the evidence of prior neglect and the probability of repetition of neglect. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986); In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

To Determine Probability of Further Neglect. - In a case involving the termination of parental rights on the ground of neglect, the court may consider a prior adjudication of neglect. It must also review the parents' mental condition and evidence of changed conditions up to the time of the hearing, in light of the evidence of prior neglect, to determine the probability of repetition of neglect. It is not essential, however, that there be evidence of culpable neglect following the initial adjudication. In re Caldwell, 75 N.C. App. 299, 330 S.E.2d 513 (1985).

And Must Independently Determine If Neglect Exists at Time of Hearing. - The key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing. In re McDonald, 72 N.C. App. 234, 324 S.E.2d 847 (1984), cert. denied, 314 N.C. 115, 332 S.E.2d 490 (1985); Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

To support termination of parental rights under former G.S. 7A-289.32 (see now this section), there must be clear, cogent and convincing evidence that neglect exists at the time of the termination proceeding. In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

Trial court erred in terminating mother's parental rights based on neglect because the Department of Social Services presented no evidence that the mother could not, at the time of the hearing, adequately parent her children. Two of the witnesses presented by the Department had not been involved with the family in the two to three years prior to the termination hearing, and a third, the social worker last assigned to the case, presented no evidence that the mother was unfit as a parent at the time of the hearing. In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005).

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).

Termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

The trial court erred in treating a prior adjudication of neglect as determinative on the issue of neglect at the time of a termination proceeding some three years later. While the court was entitled to consider the prior adjudication in the fact-finding process, new findings were required based on changed conditions in light of the history of neglect by the parents and the probability of a repetition of neglect. In re Garner, 75 N.C. App. 137, 330 S.E.2d 33 (1985).

Failure to Prove Neglect Since Entry of Ex Parte Adjudication 13 Years Previously. - An order sub judice, containing findings that an ex parte adjudication of neglect had been entered 13 years earlier, and that the petitioner had failed to present clear, cogent, and convincing evidence of neglect since that time, did not support termination pursuant to former G.S. 7A-289.32(2) (see now this section). In re Tyson, 76 N.C. App. 411, 333 S.E.2d 554 (1985).

Where a child had not been in the custody of his father for a significant period of time prior to a termination of parental rights hearing, the trial court had to employ a different kind of analysis to determine whether the evidence supported a finding of neglect because requiring the department of social services to show that the child was currently neglected by the father would make termination of parental rights impossible. In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003).

Burden on Petitioner. - The petitioner seeking termination bears the burden of showing by clear, cogent and convincing evidence that neglect exists at the time of the termination proceeding. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

Guardian Ad Litem Required for Parent Where Mental Illness is Stated as Grounds for Termination - Where the allegations contained in a petition or motion to terminate parental rights tend to show that the respondent is incapable of properly caring for his or her child because of mental illness, the trial court is required to appoint a guardian ad litem to represent the respondent at the termination hearing pursuant to G.S. 7B-1101 and subdivision (a)(6) of this section. 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).

Failure to Appoint Guardian Ad Litem - Trial court erred in terminating a mother's parental rights without appointing a guardian ad litem to represent the mother, because an agency claimed that the mother was unable to care for her child because of mental illness, and where the allegations contained in the petition or motion to terminate parental rights tended to show that the respondent was incapable of properly caring for his or her child because of mental illness, the trial court was required to appoint a guardian ad litem to represent the respondent at the termination hearing. 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).

Child may be found to be neglected if parent does not correct within a reasonable time the conditions giving rise to neglect. In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

Imprisonment as factor for termination of parental rights. - Termination of parental rights does not require that the parent's incapability be permanent or that its duration be precisely known; instead, this ground for termination merely requires that there is a reasonable probability that such incapability will continue for the foreseeable future. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49 (2014).

Sufficiency of Trial Court's Findings of Fact. - Appellate court found that remand for further action was necessary because termination based upon neglect could not be based solely on past conditions that no longer existed. If the complaining parent contended that the other parent's parental rights were to be terminated based upon neglect, a new termination hearing was required. In re O.J.R., 239 N.C. App. 329, 769 S.E.2d 631 (2015).

In a case terminating the father's parental rights based on neglect, clear, cogent, and convincing evidence supported the challenged findings of fact that he failed to understand or appreciate the extent and effects of the mother's established pattern of child abuse; that he played a role in creating and fostering an injurious and abusive environment for his child; and that he was unable or unwilling to protect the child from abuse and harm, particularly if doing so would require excluding the mother from the child's life. In re M.P.M., 243 N.C. App. 41, 776 S.E.2d 687 (2015).

Trial court's findings were inadequate to support its conclusion of willful abandonment at to the mother, as the findings failed to address her efforts or ability to request and exercise visitation, to attend the child's sports games, or to communicate with the child, particularly in light of the incomplete findings relating to her history of substance abuse and incarcerations, as well as the father's desire that the mother not have a relationship with the child while in and out of custody. In re D.M.O., 250 N.C. App. 570, 794 S.E.2d 858 (2016).

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).

Termination of the mother's parental rights on the basis of neglect was not supported by findings regarding the mother's situation or findings that the mother's situation and condition at the time of the hearing showed a likelihood of repetition of neglect. In re Z.D., 258 N.C. App. 441, 812 S.E.2d 668 (2018).

Findings were insufficient to support a determination that the father willfully abandoned the child; although the trial court found that the father did not have contact with the child nor provided any support, there were no findings as to whether the father's actions were willful. In re N.D.A., 373 N.C. 71, 833 S.E.2d 768 (2019).

Findings failed to adequately support the court's determination that the father's parental rights were subject to termination for neglect based on abandonment; there was an absence of findings concerning the father's ability to contact the petitioner or the child, to exercise visitation, or to pay any support in order to determine that his abandonment was willful. In re N.D.A., 373 N.C. 71, 833 S.E.2d 768 (2019).

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).

Trial court properly concluded that neglect was likely to reoccur if the children were returned to the mother's care where the findings of fact showed that she had been unable to recognize and break patterns of abuse that had put her children at risk and that she failed to acknowledge her responsibility for the events leading to her children's removal from the home. In re D.W.P., - N.C. - , 838 S.E.2d 396 (2020).

In a TPR action, the trial court's findings supporting termination of the father's rights based on neglect clearly showed that the trial court evaluated his history of alcohol abuse and behavior over the 22-month period during which the juveniles were outside the house, which included a repeated pattern of returning to alcohol and evasion of numerous breathalyzer tests, admission to relapsing several times during outpatient treatment, and failing breathalyzer tests before and after completing outpatient treatment. In re Z.A.M., 374 N.C. 88, 839 S.E.2d 792 (2020).

Ground of neglect for termination of a father's parental rights existed because the 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 have occurred in the future if the child were to have been placed with the father. In re N.P., 374 N.C. 61, 839 S.E.2d 801 (2020).

Trial court properly terminated a father's parental rights based on neglect as there was no requirement that he be responsible for the prior adjudication of neglect, he made minimal efforts to show interest in the child while incarcerated, and the record evidence showed that the father was responsible for his failure to satisfy his case plan's requirements. Moreover, the evidence supported the trial court's findings that the child was likely to be neglected if returned to the father's care, the father was responsible for the lack of visitation, and his convictions and sentence were drug-related. In re S.D., 374 N.C. 67, 839 S.E.2d 315 (2020).

Termination of a father's parental rights was appropriate because the trial court made sufficient findings of fact to support its conclusion that grounds existed to terminate the father's parental rights on the basis that neglect of the child would occur if the child was returned to the father's care given the father's substance abuse and alcohol use issues, domestic violence concerns, and continuing to live with the mother despite her substance abuse issues and the domestic discord in the home. In re J.O.D., 374 N.C. 797, 844 S.E.2d 570 (2020).

In light of the lengthy history of domestic violence between the parents, the trial court did not err by determining that the father's limited attendance at and his failure to complete a program constituted a failure to fully engage in domestic violence treatment and a lack of reasonable progress toward addressing the issue of domestic violence. In re M.A., 374 N.C. 865, 844 S.E.2d 916 (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).

Termination of a father's parental rights based on neglect was affirmed as the findings that he failed to adequately address domestic violence had ample evidentiary support and were, standing alone, sufficient to support a determination that there was a likelihood of future neglect in the event that the children were returned to his care. In re M.A., 374 N.C. 865, 844 S.E.2d 916 (2020).

To the extent certain determinations were more appropriately treated as conclusions of law, the court considers them as such, and there were sufficient findings of fact, supported by clear evidence, to support the trial court's conclusion that grounds existed to terminate respondent's parental rights for neglect. In re M.C., 374 N.C. 882, 844 S.E.2d 564 (2020).

Assuming arguendo the evidence was insufficient to support the trial court's finding about one incident between the mother and father, the remaining unchallenged findings established the mother's continued engagement with the father when she was not supposed to have any contact with him, and thus the erroneous finding was not necessary to support the legal determination that grounds existed for the termination of the mother's parental rights on neglect grounds. In re M.C., 374 N.C. 882, 844 S.E.2d 564 (2020).

Neglect was a proper ground to terminate the father's parental rights; although he might have had no role in the mother's substance abuse, the child's removal from the mother was largely due to the fact that the child could not be placed with the father. He failed to comply with the trial court's order, he was not incarcerated until almost 12 months after he entered into his case plan and more than 12 months since he last visited the child, and he had not developed a relationship with her and had not shown an ability to care for her. In re J.M.J.-J., 374 N.C. 553, 843 S.E.2d 94 (2020).

District court erred in terminating a mother's parental rights for neglect and willful failure to make reasonable progress because the mother completed a parenting class, completed her substance abuse assessment, participated in individual therapy sessions to address her mental health, re-engaged in treatment, was employed, submitted to drug testing, established more reliable communications with the Department of Social Services, obtained stable housing and transportation, and showed reasonable progress to reduce or remove the likelihood of future neglect. In re C.N., - N.C. App. - , 842 S.E.2d 627 (2020).

Trial court properly terminated a mother's parental rights to the minor child and that it was in the child's best interests that the mother's parental rights be terminated because there was evidence in the record of past neglect and a probability of future neglect, the mother's failure to complete her case plan supported the conclusion that she willfully left her child in foster care or a placement outside the home for over 12 months without making reasonable progress in correcting the circumstances that led to the removal of the child, and her failure to comply with substance abuse and mental health treatment and to address domestic violence issues sufficiently demonstrated her lack of reasonable progress. In re Z.K., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Trial court properly terminated a mother's parental rights to her child for neglect, willful failure to correct the conditions that led to the child's removal from her home, failure to pay a reasonable portion of the cost of the child's care while the child was in the Department of Social Services' custody, and as in the child's best interest because the trial court made sufficient dispositional findings regarding the child's bond with her maternal grandmother and half-brother in light of the evidence before it, considered the relevant statutory criteria, and weighed the competing goals of preserving the child's ties to her biological family and achieving permanence for the child through adoption. In re S.J.B., - N.C. - , - S.E.2d - (Sept. 25, 2020).

A mother, by consistently providing gifts and repeatedly contacting the mother's child and the child's caregivers over a long period of time, showed the mother's intent to remain a part of the child's life. Therefore, the trial court's findings of fact affirmatively demonstrated that the mother did not neglect the child by abandonment, and consequently, reversal of the portion of the trial court's termination order relying on the ground of neglect by abandonment was appropriate. In re K.C.T., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Findings supported the conclusion that grounds existed under subsection (a)(1) to terminate a father's parental rights because the trial court found there was a likelihood of future neglect based upon the father's history; the trial court was within its authority to determine the father's minimal efforts during his incarceration did not outweigh the evidence of his failures to make improvements while not incarcerated and to conclude there was a probability of repetition of neglect. In re O.W.D.A., - N.C. - , - S.E.2d - (Nov. 20, 2020).

In addition to the fact that the father was incarcerated for 28 years, the termination of his parental rights based on neglect was supported by his history of incarceration for drug offenses, his lack of care and attention to the children when he was not incarcerated, a history of domestic violence between the father and the mother that was witnessed by the children, his use of illicit substances while the children were in his care, and lack of progress in his case plan, all of which were incorporated under the trial court's finding of a likelihood of future neglect. In re J.S., - N.C. - , - S.E.2d - (Mar. 19, 2021).

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).

Termination of parental rights by reason of neglect upheld. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

The following clear, cogent and convincing evidence supported a termination of respondent's parental rights based on a finding that her neglectful conduct continued and existed at the time of the termination hearing: An expert testified that respondent continued to harass her son's caretakers, failed to demonstrate financial responsibility, could not focus properly on her son's needs, missed scheduled visitations, and did not keep DSS informed of changes in her circumstances. In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).

The court affirmed the termination of a mother's parental rights for neglect where the trial court found that a prior adjudication of neglect was based on findings that the child "was starving to death" while in the mother's custody and suffered from "failure to thrive," and that during supervised visitations with the child, the mother continued "to try and feed the [minor] child inappropriately both in the manner she tried to feed her and the food she brought to feed the [minor] child." In re Pope, 144 N.C. App. 32, 547 S.E.2d 153 (2001).

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).

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).

Sufficient evidence supported the termination of a mother's parental rights under G.S. 7B-1111 on the basis of neglect because 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).

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).

Clear, cogent, and convincing evidence supported a trial court's termination of a mother's parental rights to her nine-year-old child, based on neglect under G.S. 7B-1111(a)(1), because fifteen kilograms of cocaine, assault weapons, ammunition, and numerous other items related to the packaging and sale of cocaine were discovered in the home where the child lived, the mother allowed the child to sleep on a mattress in a closet, and the mother failed to maintain stable housing and employment; 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).

Termination of a father's parental rights based on the probability of repetition of neglect was supported by substantial evidence that showed that the father made no effort to visit his son in the five months prior to termination hearing, that the father met with a parenting class instructor only once even though parenting classes were part of case plan, and that the father held only occasional part-time jobs. In re J.E.M., 221 N.C. App. 361, 727 S.E.2d 398 (2012).

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).

Termination of the father's parental rights based on neglect was proper as the findings of fact supported the trial court's conclusion of law that the father neglected the child at the time of the termination hearing and that there was a likelihood of repetition of neglect given the severity of the mother and the father's abuse of the child's siblings; the father's dishonesty with respect to his role in the abuse and his continued contact with the mother; and the father's continued lack of understanding of the danger that the mother posed to the child. In re M.P.M., 243 N.C. App. 41, 776 S.E.2d 687 (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).

Trial court did not err in concluding that grounds existed under G.S. 7B-1111(a)(1) to terminate a father's parental rights where, in addition to prior adjudication of neglect, the father had a long history of criminal activity and substance abuse, he was aware of the mother's substance abuse issues, and he failed to follow through consistently with recommendations and directives following his release, including decreasing visitation with the child. In re M.A.W., 370 N.C. 149, 804 S.E.2d 513 (2017).

Mother's parental rights were properly terminated on the basis of neglect given the trial court's findings that she had not gained independent housing since the child was removed, she could not support herself, and she maintained contact with the child's abusive father. In re A.L.Z., 256 N.C. App. 754, 808 S.E.2d 176 (2017), review denied, stay lifted, stay denied, 2018 N.C. LEXIS 260 (2018) review denied, stay lifted, stay denied, 811 S.E.2d 165, 2018 N.C. LEXIS 260 (2018).

There was competent evidence to support the findings that the child was a neglected juvenile and there was a likelihood of repeated neglect; the mother and father were incapable of parenting, they failed to demonstrate their ability to engage in safe visitation multiple times, and they did not comply with their case plans. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875 (2018).

Father's appeal of the termination of his parental rights was dismissed because his counsel filed a no-merit brief, the father's pro se arguments were untimely and nothing more than unsupported allegations of error, and the court found that grounds for termination existed and that termination of the father's parental rights was in the children's best interests. In re I.P., 261 N.C. App. 638, 820 S.E.2d 586 (2018).

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).

Neglect Shown. - Evidence, including mother's refusal to enroll in a residential drug treatment facility and her failure to make improvements in her lifestyle which might help her care for and supervise her children in view of her alcohol dependence, supported a finding of neglect or the probability of its repetition at the time of termination hearing. In re Leftwich, 135 N.C. App. 67, 518 S.E.2d 799 (1999).

Where the evidence disclosed that respondent father had never provided a home or other essentials for his two children throughout their entire lifetime, and that he has basically depended upon others to do so, the fact that after the children were placed in foster care respondent made some payments to Department of Social Services for their support did not invalidate the court's findings of neglect under former G.S. 7A-289.32(2) (see now this section). In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

Trial court properly terminated the mother's parental rights under G.S. 7B-1111(a)(1), where the court found, based on evidence of the mother's lack of contact with child and lack of support of the child, that she had neglected the child by way of abandonment; 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).

Trial court did not err in terminating the father's parental rights to the minor child, as the father, who at times was incarcerated and who did not live with the mother and the child when not incarcerated, neglected the child by failing to financially support the child, communicate with the child, and visit with the child but a few times and it was in the child's best interest to terminate the father's parental rights so that the mother could put the child up for adoption as she desired. In re Yocum, 158 N.C. App. 198, 580 S.E.2d 399 (2003).

Evidence that a father, although incarcerated since his child's birth, had not provided any financial support for the child from the compensation he received for his prison employment and had not sought any personal contact with the child or attempted to convey love or affection for the child, nor had he inquired about the child in his infrequent correspondence with the child's mother, sufficiently supported the trial court's findings that the father neglected the child under G.S.7B-1111(a)(1), and these findings supported a termination of the father's parental rights. In re Bradshaw, 160 N.C. App. 677, 587 S.E.2d 83 (2003).

Having found that the trial court's findings sufficiently supported its conclusion that a father neglected his child, under G.S. 7B-1111(a)(1), allowing termination of the father's parental rights, it was unnecessary for the appellate court to consider whether those findings were also sufficient for termination of the father's parental rights under G.S. 7B-1111(a)(7), based on willful abandonment. In re Bradshaw, 160 N.C. App. 677, 587 S.E.2d 83 (2003).

Clear, cogent, and convincing evidence existed to support termination of a mother's parental rights for neglect where: (1) her daughter was sexually abused in the mother's home under conditions the mother helped to create; (2) the mother was aware of the sexual abuse, but failed to protect her child; (3) the mother did not continue therapy for the child after repeated sexual abuse, and (4) termination was in the best interest of the child because there was a strong likelihood that the neglect would continue where the mother denied and/or minimized her responsibility for the abuse and neglect, and where she failed to minimize the conditions in her life that led to the child's abuse and neglect. In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003).

Trial court did not abuse its discretion in terminating a mother's parental rights to her daughter pursuant to G.S. 7B-1111; the mother failed to comply with drug treatment and other requirements, and showed little interest in maintaining a relationship with the daughter, as evidenced by the mother's failure to pay to support the child and her failure to consistently visit the child, and therefore the trial court properly determined that the child was neglected. In re Howell, 161 N.C. App. 650, 589 S.E.2d 157 (2003).

Order terminating mother's parental rights to her four minor children was proper where the children were previously adjudicated neglected, there was a probability of repetition of neglect if returned to the mother, four to five trial placements with the mother had failed, the mother had a history of failing to show a positive response to counseling and educational programs, the mother left a stable job and housing to move to another state where she did not have employment or independent housing, and she had been unable to cope with the pressure of caring for the children at the same time, with such findings being sufficient to establish neglect under G.S. 7B-1111(a)(1). In re L.O.K., 174 N.C. App. 426, 621 S.E.2d 236 (2005).

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).

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).

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).

Trial court properly terminated the mother's parental rights where the unchallenged findings of fact showed 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, thereby supporting the finding of neglect. In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008).

Order terminating the parental rights to the minor child was affirmed because respondents were the sole care providers for the child when the injury occurred and the father failed to acknowledge why his child entered Mecklenburg County Department of Social Services custody, and he also failed to exhibit changed behaviors. In re Y.Y.E.T., 205 N.C. App. 120, 695 S.E.2d 517 (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).

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).

Because the evidence supported the trial court's findings that a 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).

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).

Termination of a father's parental rights on ground of neglect and abandonment was appropriate because the father did not comply with the father's case plan in that the father had positive drug screens, failed to engage in recommended substance abuse treatment, and was inconsistent with visitation of the father's children. Furthermore, when the father did attend visitation the father appeared to be under the influence of substances. In re X.P.W., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Incarceration of Respondent. - 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).

Neglect Not Shown. - Trial court erred in concluding that grounds existed under G.S. 7B-1111(a)(1) to terminate the mother's parental rights, where there was no prior adjudication of neglect. There was a prior adjudication of delinquency, but the mother had already lost custody; thus, there was no evidence before the trial court that the mother had neglected the child while the child was in the mother's care. In re J.G.B., 177 N.C. App. 375, 628 S.E.2d 450 (2006).

Allegation that father neglected children was not supported by clear, cogent, and convincing evidence, where the evidence showed that the father had written letters to the children and sent them birthday and Christmas cards, including some money, but that the policy of the Department of Social Services did not permit visitation with an incarcerated parent. In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007).

In dismissing a guardian ad litem's termination of parental rights case against a father, the trial court did not err in concluding based upon the findings of fact that the father's parental rights could not be terminated based on neglect, pursuant to G.S. 7B-1111(a)(1), where the father was incarcerated when the minor children were adjudicated neglected, he substantially complied with his case plan, and the trial court did not find the probability of repetition of neglect. In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012).

District court erred in finding that a father's lack of alternative child care arrangements justified terminating his parental rights where home studies had been conducted with at least two relatives, placement with those relatives was recommended and approved, and the father chose not to place the child with one of those relatives because he believed that it was better for the child for him to remain in foster care. In re D.T.N.A., 250 N.C. App. 582, 801 S.E.2d 642 (2016).

District court erred in finding that a father's noncompliance with the case plan justified terminating his parental rights where the evidence showed that he was employed, had maintained suitable and stable housing, had completed a parenting assessment and complied with its recommendations, attended all parenting classes, stayed current on his child support obligations, and had attended the majority of visits with the child. In re D.T.N.A., 250 N.C. App. 582, 801 S.E.2d 642 (2016).

District court erred in finding that a father's poor decisionmaking justified terminating his parental rights where he had moved out of his girlfriend's home in order to have unsupervised visits with the child, and only moved back in after shots were fired at the apartment he had rented, indicating that the apartment was not in a neighborhood that was safe for the child. In re D.T.N.A., 250 N.C. App. 582, 801 S.E.2d 642 (2016).

District court erred in concluding that a father was incapable of providing for a child's daily needs where it found that the father had rectified or addressed all of the deficiencies that were called to his attention, and the caseworker noted his appropriate interactions with the child and compliance with the case plan. In re D.T.N.A., 250 N.C. App. 582, 801 S.E.2d 642 (2016).

District court erred in finding that a father's drug use justified terminating his parental rights where other than admitting to smoking marijuana on one occasion and one-time refusal to take a drug test, his multiple negative drug screens during his criminal probation and while the child was in foster care did not meet the burden of showing that the father's substance abuse would have prevented him from providing for the proper care and supervision of the child. In re D.T.N.A., 250 N.C. App. 582, 801 S.E.2d 642 (2016).

Trial court erred in concluding that a mother's parental rights were to be terminated on the basis of neglect because the mother divorced the abusive father, completed all of the therapy and counseling courses required by the case plan, and devoted hours to writing up a detailed safety plan for the child. In addition, each of the care providers stated that the mother had satisfactorily addressed all concerns about the mother's ability to safely and effectively parent the mother's children and required no further counseling. In re K.L.T., 374 N.C. 826, 845 S.E.2d 28 (2020).

Because petitioners failed to prove that the father previously neglected the child and that he was likely to neglect the child again in the future, the evidence did not support termination of the father's parental rights on the basis of neglect. In re E.B., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Termination Not Upheld. - Where the trial court based its conclusion of neglect on its findings relative to past conditions and made no determination resolving conflicts in the evidence as to whether conditions existing at the time of the hearing were indicative of a probability of continued neglect or whether the previous neglect had ameliorated, the trial court found insufficient facts to support its conclusion that respondent's minor children were neglected children and its order terminating respondent's parental rights on that basis. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

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 within the meaning of subsection (2). Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).

Termination of respondent's parental rights was not supported by the evidence where none of the witnesses - the respondent's guardian ad litem, her counselor, and a court appointed clinical psychologist - expressed certainty that her mental illness would prevent her from adequately parenting her children and where the father of one of the children, whom the trial court seemed to have viewed as a threat, had since died. In re Small, 138 N.C. App. 474, 530 S.E.2d 104 (2000).

The trial court's findings were insufficient to terminate the mother's rights since it did not address whether the mother could pay support, address the concerns leading to the child's removal, or list the unmet conditions. In re Locklear, 151 N.C. App. 573, 566 S.E.2d 165 (2002).

In a termination of parental rights proceeding, there was no clear, cogent, or convincing evidence and no finding that a father had neglected his children or that any past neglect was likely to reoccur and the trial court had to consider how conditions had changed from the time it previously found the children were neglected; the father who had been in prison when those previous orders were entered was now out of prison, was no longer involved with the children's mother, who had neglected them, and was able and willing to care for his children. In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003).

In a termination of parental rights proceeding, evidence that a father had failed to complete certain parts of his case plan was not clear, cogent, or convincing evidence that he neglected his children; because less than two months had elapsed since that plan was adopted, there had not been an adequate time to assess his progress on that case plan. In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003).

Because the trial court's findings did not support the conclusion that the mother failed to make reasonable progress in correcting the conditions that led to a finding of neglect and the child's removal, the mother's rights were improperly terminated. In re J.T.W., 178 N.C. App. 678, 632 S.E.2d 237 (2006), rev'd on other grounds, 361 N.C. 341, 643 S.E.2d 579 (2007).

Termination of a mother's parental rights pursuant to G.S. 7B-1111(a)(1) was vacated because the mother was not provided notice of the termination hearing as required by G.S. 7B-1106, as there was no evidence that the addresses to which notices were sent were the mother's dwelling, and this fact, along with the fact that the mother did not attend the hearing or respond in any way, refuted the presumption of valid service under G.S. 1A-1-4(j)(2). In re K.N., 181 N.C. App. 736, 640 S.E.2d 813 (2007).

Trial court erred in terminating a mother's parental rights on grounds of neglect and dependency because a county department of social services (DSS) presented no oral testimony to carry its burden of proof as to neglect or dependency, and the mother's testimony, which refuted DSS's allegations, was not sufficient to carry its burden of proving the allegations of the termination petition by clear, cogent, and convincing evidence; the trial court failed to make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing because no oral testimony was provided on behalf of DSS, and the testimony the mother presented did not provide sufficient evidence to support the termination of parental rights determination. In re N.B., 195 N.C. App. 113, 670 S.E.2d 923 (2009).

III. FAILURE TO PAY REASONABLE PORTION OF COST OF CARE.

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The phrase "cost of care" in subdivision (4) of former G.S. 7A-289.32 (see now this section) refers to the amount it costs for the Department to care for the child, namely, foster care. Specific findings of fact as to the reasonable needs of the child are not required. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

The requirement of subdivision (4) of former G.S. 7A-289.32 (see now this section) applies irrespective of the parent's wealth or poverty. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Ability to Pay. - Trial court does not err by failing to make a finding of "ability to pay" where the grounds to terminate are those set forth in G.S. 7B-1111(a)(4) or G.S. 7B-1111(a)(5)d. In re J.D.S., 170 N.C. App. 244, 612 S.E.2d 350 (2005), cert. denied, - U.S. - , 360 N.C. 64, 623 S.E.2d 584 (2005).

Termination of a father's parental rights based in part on his failure to pay support was supported by findings that the father made no child support payments after the child placed in the custody of a county department of social services, that the father had been gainfully employed from time to time, and that the had been physically and financially able to make some payment but had not done so. In re J.E.M., 221 N.C. App. 361, 727 S.E.2d 398 (2012).

Termination of the mother's parental rights was proper as she was working at a restaurant at the beginning of the six-month period but quit on her own accord, and any fault for the lapse in her medication was hers, as she chose to not seek another provider until her symptoms worsened to the point that she needed to be hospitalized; the trial court's findings established that the mother had the ability to pay some amount toward the cost of care for her children but paid nothing. In re J.M., 373 N.C. 352, 838 S.E.2d 173 (2020).

A finding that a parent has ability to pay support is essential to termination for nonsupport under subdivision (4) of former G.S. 7A-289.32 (see now this section) for failing to pay a reasonable portion of the cost of care for the child. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984); Department of Social Servs. v. Johnson, 70 N.C. App. 383, 320 S.E.2d 301 (1984).

Ability to Pay Controls What Is "Reasonable Portion". - In determining what is a "reasonable portion," of child's cost of care, the parent's ability to pay is the controlling characteristic. In re Bradley, 57 N.C. App. 475, 291 S.E.2d 800 (1982); In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984); In re Garner, 75 N.C. App. 137, 330 S.E.2d 33 (1985).

Finding that a parent has ability to pay support is essential to termination for nonsupport pursuant to G.S. 7B-1111(a)(3). In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (2004), aff'd, 359 N.C. 405, 610 S.E.2d 199 (2005).

A parent is required to pay that portion of the cost of foster care that is fair, just, and equitable based upon the parent's ability or means to pay. What is within a parent's "ability" to pay or what is within the "means" of a parent to pay is a difficult standard which requires great flexibility in its application. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984); In re Garner, 75 N.C. App. 137, 330 S.E.2d 33 (1985).

A parent's ability to pay is the controlling characteristic of what is a "reasonable portion" of cost of foster care for the child which the parent must pay. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986).

Ability to Pay Controls What Is "Reasonable Portion." - Although what is within a parent's ability to pay or what is within the means of a parent to pay is a difficult standard that requires great flexibility in its application, the requirement of G.S. 7B-1111(a)(3) applies irrespective of the parent's wealth or poverty; the parents' economic status is merely a factor used to determine their ability to pay such costs, but their ability to pay is the controlling characteristic of what is a reasonable amount for them to pay. In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (2004), aff'd, 359 N.C. 405, 610 S.E.2d 199 (2005).

Where parent had opportunity to provide for some of the cost of care of child, and forfeited that opportunity by his or her own misconduct, such parent will not be heard to assert that he or she has no ability or means to contribute to the child's care and is therefore excused from contributing any amount. In re Bradley, 57 N.C. App. 475, 291 S.E.2d 800 (1982).

The court erred in failing to make a specific finding as to an incarcerated parent's ability to pay some amount greater than zero during the relevant time period. In re Garner, 75 N.C. App. 137, 330 S.E.2d 33 (1985).

Rights Not Properly Terminated. - The trial court erred in terminating a father's parental rights on the grounds of non-payment of a reasonable portion of foster care expenses under G.S. 7B-1111(a)(3), because no evidence was presented indicating the father was capable of earning an income while in prison, and the father was never ordered to pay any support at all. In re Clark, 151 N.C. App. 286, 565 S.E.2d 245 (2002), cert. denied, 356 N.C. 302, 570 S.E.2d 501 (2002).

Trial court erroneously terminated mother's parental rights based on a finding under G.S. 7B-1111(a)(3) that she had failed to contribute to the cost of her children's foster care, despite being physically and financially able to do so; the only evidence presented to the trial court on this subject established that she had been employed at various times since 1999 and did not address whether she was employed during the six months preceding the filing of the termination petition or whether she had the financial ability to contribute to the children's support during that time. In re Faircloth, 161 N.C. App. 523, 588 S.E.2d 561 (2003).

Finding on Ability to Pay Held Not Required. - Where petition did not allege, and the court did not find, that respondent father had not paid a reasonable portion of the cost of child care while his two children were in foster care, the court was not required to make findings as to his ability to pay pursuant to subdivision (4) of former G.S. 7A-289.32. In re White, 81 N.C. App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

Failure to Pay Reasonable Portion of Costs of Care Shown. - Where father paid $90.00 for the support of his four children over a 45-week period, while his earnings ranged between $100.00 and $125.00 per week, and he had enough money to venture $60.00 per week into a hog operation at a time when he knew of his $30.00 per week obligation by virtue of court order, there was ample evidence from which trial court could have concluded that father failed to pay a reasonable portion of the costs of care of the children. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

Findings of fact that minor children had been in the custody of county department of social services since July 1974, that parent had failed to pay any portion of the cost of care for the minor children since June 1979, and that while incarcerated in the North Carolina Prison System, parent had the opportunity to participate in the work-release program but was removed from the program due to his violation of prison regulations by returning from the work-release program in an intoxicated condition were sufficient to support the court's conclusion that parent failed to pay a reasonable portion of the costs of care of his minor children. In re Bradley, 57 N.C. App. 475, 291 S.E.2d 800 (1982).

Where the father of a two-year-old who was incarcerated for robbery and kidnapping earned between 40 cents and a dollar a day but sent nothing to his child in foster care, his parental rights were properly terminated for nonsupport under G.S. 7B-1111(a)(3). In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (2004), aff'd, 359 N.C. 405, 610 S.E.2d 199 (2005).

Trial court properly terminated a mother's parental rights while an adoption appeal was pending because the mother's relinquishment of her parental rights was valid and conformed to the mandatory statutory requirements, grounds existed to terminate her parental rights for failure to pay child support and in the best interests of the child, the district court's order originated as an adoption petition, and the adoptive parents had standing petition for termination of the mother's parental rights. In re Baby Boy, 238 N.C. App. 316, 767 S.E.2d 628 (2014).

District court did not err in terminating the father's parental rights for failure to pay a reasonable portion of the cost of care for his daughter where the record showed that his ability to pay was established by child support enforcement orders, he made only two payments over the course of the case, and he twice signed a memorandum of understanding acknowledging that he had the ability to pay. In re A.L., 245 N.C. App. 55, 781 S.E.2d 856 (2016).

Trial court did not err in terminating a mother's parental rights, on the ground of a failure to pay a reasonable portion for the care of the mother's minor children while the children were in the custody of the local department of social services for six months prior to the filing of the petition, because the mother, who generated income from a house-cleaning business and received tax refunds, was able to pay some amount greater than the amount the mother did in fact pay, which was nothing. 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).

Findings fully supported the trial court's conclusion that grounds existed to terminate a mother's parental rights based upon her willful failure to pay a reasonable portion of the cost of care during the children's placement in county department of social services custody because the mother was on notice of her failure to pay something towards the cost of care for her children; the trial court repeatedly found in its permanency planning orders that none of the parents were paying child support. In re S.E., - N.C. - , 838 S.E.2d 328 (2020).

Willful Failure to Pay Not Shown. - Evidence did not clearly and convincingly show that a father willfully failed to pay a reasonable cost of care of two minor children in foster care where the father was incarcerated when the minor children were adjudicated neglected, the father wrote to the department of social services about providing support but was informed that support could not be arranged at the time because the father was earning less than minimum wage, and the agency could not establish a child support case. In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012).

IV. WILLFUL ABANDONMENT.

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"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. 322, 296 S.E.2d 811 (1982).

Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child. In re Searle, 82 N.C. App. 273, 346 S.E.2d 511 (1986).

The word "willful" encompasses more than an intention to do a thing; there must also be purpose and deliberation. In re Searle, 82 N.C. App. 273, 346 S.E.2d 511 (1986).

Question of Fact. - Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence. In re Searle, 82 N.C. App. 273, 346 S.E.2d 511 (1986).

Time Period. - Because petitioner filed the petition on May 12, 2014, the six-month period from November 12, 2013, to May 12, 2014 was examined for abandonment purposes. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).

Adoption Without Consent of Parent upon Finding of Willful Abandonment. - Prior to October 1, 1985, two procedures were available to enable a petitioning party to adopt a minor child without the consent of the opposing biological parent. First, under this section, a court could terminate the parental rights of a biological parent upon a finding of one of the grounds enumerated therein, and then pursuant to G.S. 48-5, once a district court had entered an order terminating the parental rights of the biological parent, that parent was no longer a necessary party to an adoption proceeding. Second, the court, under G.S. 48-5(d), upon proper motion, was authorized to hold a hearing to determine whether an abandonment as defined in former G.S. 48-2(1)a and (1)b had taken place. However, effective October 1, 1985, these proceedings were merged into one termination of parental rights proceeding under subdivision (8) of former G.S. 7A-289.32 (see now this section) to ascertain whether the parent had willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition. In re Searle, 82 N.C. App. 273, 346 S.E.2d 511 (1986).

Contact Outside Six-Month Period. - While the father sent one card to the child after being served with the termination petition in June 2018, the card was sent outside of the relevant six-month period, and thus not determinative in adjudicating willful abandonment. In re C.B.C., 373 N.C. 16, 832 S.E.2d 692 (2019).

Father's actions in 2018 did not demonstrate a commitment to parenting the child or an equivalent focus on the needs and well-being of her; their activities together did not progress beyond playing video or board games, and regardless, any error in these findings was harmless and had no impact on the trial court's adjudication because they occurred in 2018 after the petition was filed and well outside the determinative time period. In re K.N.K., 374 N.C. 50, 839 S.E.2d 735 (2020).

Sufficiency of Trial Court's Findings of Fact. - Appellate court found that remand for further action was necessary because if a trial court meant to terminate a parent's parental rights due to willful abandonment, the court needed to provide both sufficient findings of fact and conclusions of law indicating that the court was proceeding under the relevant statutory provision, and that the other parent proved that the parent had willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition. In re O.J.R., 239 N.C. App. 329, 769 S.E.2d 631 (2015).

Trial court erred in terminating parental rights because the termination order did not contain the necessary findings of fact to support the conclusion that the parents willfully left the child in foster care without making reasonable progress to correct the conditions which led to the removal of their child; the parents sought transportation assistance from the county department of social services but were denied help, and they both testified they had been regularly applying for work. In re L.L.O., 252 N.C. App. 447, 799 S.E.2d 59 (2017).

Supreme court was unable to undertake meaningful appellate review of the trial court's decision to deny a mother's petition to terminate a father's parental rights based upon a series of evidentiary findings that were untethered to any ultimate facts or to any particularized conclusions of law that would explain the trial court's reasoning; the trial court's findings offered no assessment regarding the willfulness of the father's conduct toward the child on the matter of abandonment. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

In a termination of parental rights action, evidence showed that the mother was in possession of her cousin's phone number and had other shared relatives in through whom the mother could have attempted to communicate with the child, who was in the cousin's care, including the mother's own mother as well as the cousin's mother and grandmother. The mother's complete failure to show any interest in the child for more than the six months required supported the trial court's conclusion that the mother acted willfully in abandoning the child. In re L.M.M., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Although a trial court's findings failed to show that a mother - who had mental health issues, lacked a driver's license, and was unemployed and relied on supplemental security income - had a purposeful, deliberative and manifest willful determination to forego all parental duties and relinquish all parental claims to the mother's child, in light of the minimal contact between the mother and the child during the relevant six-month period, remand was appropriate for the court to address the issue of whether willful abandonment existed. In re K.C.T., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Trial court properly terminated father's parental rights for willful abandonment; findings established that father made no attempt to contact the children from late December 2013 through June 2019, he did not purchase clothing or other items for the children, and he did not provide any financial assistance for the children's benefit. Trial court did acknowledge that father had been injured in an unsolved shooting but ultimately determined that his failure to contact the children was willful. In re G.G.M., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Abandonment Not Shown. - There was no support for the trial court's finding that father willfully "withheld his presence, love, care and affection from the children" during six consecutive months immediately preceding petition to terminate parental rights, where during this time he visited the children during the Christmas holiday, attended three of the children's soccer games and told the mother that he wanted to pay his back child support and set up regular visitations. Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).

In a termination of parental rights proceeding, the trial court's findings were not sufficient to support its conclusion that a father willfully abandoned his child for six months, under G.S. 7B-1111(7), because during the six months before the termination petition was filed the father was incarcerated. In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003).

Termination of the natural father's parental rights based on willful abandonment was reversed where the evidence showed that the father was instructed not to contact child during pendency of criminal charges against him for first degree sexual assault involving a minor child - charges which were later dismissed, and that the father made child support payments when he had the money to do so. In re T.C.B., 166 N.C. App. 482, 602 S.E.2d 17 (2004).

Abandonment was not a proper basis for termination of the father's parental rights where the Department of Social Services failed to allege abandonment as a ground for termination in its petition, and thus the father had no notice that abandonment was going to be an issue during the termination hearing. In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007).

Trial court erred in terminating a mother's parental rights pursuant to G.S. 7B-1111(a)(7) on the ground that she willfully abandoned her child for the six-month period prior to the filing of the termination petition because the mother's actions during the six-month period did not demonstrate a purposeful, deliberative, and manifest willful determination to forego all parental duties and relinquish all parental claims to the child; the mother visited the child eleven times during the relevant time period and brought appropriate toys and clothes for the child to those visits, and many of the findings of fact the trial court made for the relevant period were not of great relevance for a determination of willful abandonment pursuant to G.S. 7B-1111(a)(7). In re S.R.G., 195 N.C. App. 79, 671 S.E.2d 47 (2009).

Judicial determination that a parent willfully abandoned her child, particularly when a court is considering a relatively short six month period, needs to show more than a failure of the parent to live up to her obligations as a parent in an appropriate fashion because the General Assembly did not intend the same factors relevant to termination pursuant to G.S. 7B-1111(a)(2), which requires a twelve month period before filing a termination petition on that ground, to be used as substantive evidence in finding willful abandonment under G.S. 7B-1111(a)(7); the findings must clearly show that the parent's actions are wholly inconsistent with a desire to maintain custody of the child, and a parent's failure to address the necessary requirements laid out in his or her case plan to regain custody of her child becomes more relevant to any finding of willful abandonment the longer the parent fails to act. In re S.R.G., 195 N.C. App. 79, 671 S.E.2d 47 (2009).

There was not sufficient competent evidence to terminate the mother's parental rights based upon abandonment, as the mother paid child support, maintained regular contact with the children's GAL, apparent sobriety, steady employment, and at least minimal participation in the proceedings. In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015).

District court's finding of willful abandonment was not supported by the evidence where the father had entered into a case plan and substantially complied with it, he was current in his child support obligation, regularly visited the child, attended parenting classes, and participated in the child's medical appointments. In re D.T.N.A., 250 N.C. App. 582, 801 S.E.2d 642 (2016).

Terminating a father's parental rights on grounds of abandonment and neglect by abandonment erred because (1) the father did not willfully abandon the children during the six months before the petition was filed, as the father sought the children's custody during that time, and (2) findings based on a consent order granting the children's custody to others, terminating the father's child support obligation, denying the father visitation, and purporting to waive any objection to termination, erred, as the order was void as against public policy, since the statutory termination process had to be followed, any agreement to relinquish parental rights avoided this process, and the order's terms did not meet statutory requirements for a consent to adoption or relinquishment of parental rights to an agency. In re C.K.C., 263 N.C. App. 158, 822 S.E.2d 741 (2018).

Explanation that the father had long planned to relocate to California with the child, based on his belief that he would be able to take the child with him or place her with his sister, did not inherently suggest a willful intent to abandon. In re E.B., - N.C. - , - S.E.2d - (Sept. 25, 2020).

"Willful" Abandonment Not Shown. - Trial court erred by relying on the parties' stipulation that a father had abandoned the children for six months as the sole ground for the termination of his parental rights under G.S. 7B-1111(a)(7), as he never stipulated that his abandonment was willful, and the mother presented no evidence on that issue. In re A.K.D., 227 N.C. App. 58, 745 S.E.2d 7 (2013).

Clear evidence did not support the finding that the father failed to maintain communications with the child during the relevant time; in addition, even during the last half of the six-month period, the evidence tended to show that the father attempted to communicate with the child but the mother stopped allowing him to contact her. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).

Certain findings addressed factual grounds that could support a conclusion of abandonment and some of them addressed events outside the relevant six-month period, other findings, including that there had been no cards or gifts from the father to the child, and that the father failed to provide support, did do not demonstrate that he had a willful determination to forego all parental duties and relinquish all parental claims to the child; the trial court erred in concluding that the father had willfully abandoned the child. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).

Trial court erred in terminating a father's parental rights based on abandonment because, while the trial court found that the father sent the mother a letter prior to her filing the petition, the finding neglected to indicate whether it occurred prior to or during the relevant six-month period, the father testified that he wrote the child multiple letters while in prison, but that the mother refused to provide him with contact information for herself or the child, the trial court's findings did not address, in light of his incarceration, what other efforts the father could have been expected to make to contact the mother and the child, and the trial court's order improperly mixed its factual findings with its conclusions of law. In re D.E.M., 257 N.C. App. 618, 810 S.E.2d 375 (2018).

Trial court erred in terminating the father's parental rights based on abandonment because there was no finding of willfulness as a domestic violence protective order specifically prohibited the father from harassing or interfering with the mother and required him to stay away from her home and workplace; and the child was only three years old and, any communication with, gifts to, or requests to visit her would have had to necessarily been directed to the mother. In re I.R.L., 263 N.C. App. 481, 823 S.E.2d 902 (2019).

Termination of the father's parental rights based on abandonment was erroneous because the trial court's findings established that the father took a number of affirmative actions, including sending e-mails to the maternal aunt, attending a Child Family Team meeting, and satisfying the requirements of his case plan during the relevant six-month period in an attempt to show his love, concern, and affection for his daughter. In re Z.J.W., - N.C. - , - S.E.2d - (Mar. 12, 2021).

Abandonment Shown. - Termination of father's parental rights was upheld where Department of Social Services presented clear, cogent, and convincing evidence supporting several grounds for termination, including willful abandonment; the department testified that the father had at most only seen the child immediately after birth, and the child was three at time of the termination proceedings. In re R.R., 180 N.C. App. 628, 638 S.E.2d 502 (2006).

Father's rights in his two minor daughters were properly terminated due to abandonment under G.S. 7B-1111(a)(7) because he had not visited or telephoned the children in more than six months, despite having the ability to do so, and he had not provided the children with any cards, letters, or gifts for several years. In re M.D., 200 N.C. App. 35, 682 S.E.2d 780 (2009).

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).

Evidence was sufficient to support termination of a father's parental rights based on abandonment pursuant to G.S. 7B-1111(a)(7), as he failed to attend meeting, have visitation with his children, or pay child support to provide for them. In re C.I.M., 214 N.C. App. 342, 715 S.E.2d 247 (2011).

While the better practice would have been to specifically plead termination pursuant the section for abandonment, the petition sufficiently alleged facts to place the father on notice that his parental rights may be terminated on the basis that he abandoned his child, as it alleged that the father's lack of involvement with or regard for the minor child constituted neglect In re T.J.F., 230 N.C. App. 531, 750 S.E.2d 568 (2013).

Trial court did not err in concluding a parent had abandoned a juvenile because, during the relevant six-month period, the parent did not visit the juvenile, failed to pay child support in a timely and consistent manner, and failed to make a good faith effort to maintain or reestablish a relationship with the juvenile. The parent's last-minute child support payments and requests for visitation did not undermine the trial court's conclusion that the parent had abandoned the juvenile. In re C.J.H., 240 N.C. App. 489, 772 S.E.2d 82 (2015).

Termination of the mother's parental rights was proper based on willful abandonment of her child as the mother made no effort to contact the child and paid nothing toward his support during the six months immediately preceding the filing of the grandparents' petition to terminate because, while her parental rights had been previously terminated, there was no evidence that the mother sought to stay the order while her appeal was pending, or otherwise requested visitation with the child from the trial court or the grandparents; she was not prohibited from contacting and visiting the child; and she demonstrated almost no interest in the child since losing custody of him. In re D.E.M., 254 N.C. App. 401, 802 S.E.2d 766 (2017), aff'd, 370 N.C. 463, 809 S.E.2d 567, 2018 N.C. LEXIS 55 (2018).

District court properly terminated a mother's parental rights after adjudicating the existence of abandonment because the law of the case doctrine did not apply where the district court made several unchallenged findings of fact about events occurring after the filing of the first petition by withholding her presence, her love, her care and failing to take any opportunity to display maternal affection, and there was no finding of fact in the order on appeal regarding respondent's reasons for her continued failure to visit or contact the child in the six months prior to the filing of the new petition in 2016. In re K.C., 258 N.C. App. 273, 812 S.E.2d 873 (2018).

Sufficient evidence supported the trial court's determination that the father willfully abandoned his children, as he had no contact with them during the statutory time period, he made no effort to have any involvement with them for several years following the temporary custody judgment, and the fact that he was incarcerated for most the six-month period was not material, as he was aware during his incarceration of his ability to seek relief from the trial court's orders and he did not do so. In re E.H.P., 372 N.C. 388, 831 S.E.2d 49 (2019).

Trial court did not err by determining that grounds existed to terminate the father's parental rights because the record showed that the father moved out of state without informing DSS, he failed to attend permanency planning hearings, he did not request a single visit with the child, and he did not make any video conference calls to the child until after the termination petition was filed. In re E.B., - N.C. App. - , 834 S.E.2d 169 (2019).

Sufficient evidence supported the trial court's termination of the father's parental rights due to abandonment; the father had no contact with the child or her grandparents, who had custody of the child, for nearly one year prior to the filing of the termination petition, and he had the ability to make at least some contact but chose not to. As the father had not challenged these findings, they were binding on appeal. Further, he failed to resume visitation, did not send any letters to the child, and did not provide any financial support. In re C.B.C., 373 N.C. 16, 832 S.E.2d 692 (2019).

Abandonment grounds existed to terminate the father's parental rights and the trial court properly determined that he willfully chose not to see the child; though the father was out of jail and aware he could exercise visitation rights, he did not visit the child, and after being given a second chance, the father took no action because he had "so much going on at one time." Additionally, he neither sent the child any gifts or cards nor inquired about his welfare. In re B.C.B., 374 N.C. 32, 839 S.E.2d 748 (2020).

Trial court's findings supported its adjudication of termination of the father's parental rights for abandonment; from 2014 until the petition's filing date, the father had no contact or communication of any kind with the child, provided her no financial support, and never attended any of her medical appointments, educational functions, or extracurricular activities. These facts supported the ultimate findings that the father acted willfully and with an intention to forego his parental responsibilities to the child. In re K.N.K., 374 N.C. 50, 839 S.E.2d 735 (2020).

Termination of a father's parental rights on the ground of willful abandonment was appropriate because the trial court found that the father, who was incarcerated and subject to an order prohibiting the father from directly contacting the children, one of whom the father had allegedly sexually abused, had, with one exception, not contacted the mother to ask permission to have contact with the children or to otherwise express any love, affection, or parental concern for them during the statutorily prescribed six-month period. In re: A.G.D., 374 N.C. 317, 841 S.E.2d 238 (2020).

Trial court properly adjudicated grounds for terminating the father's parental rights based on willful abandonment because the evidence showed that he had the ability to contact the child's mother directly about the child but made no effort to do so, and he provided no financial support for the child despite having full-time employment throughout the relevant six-month period. In re J.T.C., - N.C. App. - , - S.E.2d - (Aug. 18, 2020).

Willful abandonment under G.S. 7B-1111(a)(7) was supported where the mother had made no effort to have contact with the child during the determinative six-month period or in the two years before that period, and her failure to attempt any form of contact or communication gave rise to an inference that she acted willfully in abdicating her parental role, notwithstanding any personal animus between her and the caregivers. In re A.L.S., 374 N.C. 515, 843 S.E.2d 89 (2020).

Termination of a father's parental rights to the father's children on the ground of willful abandonment was appropriate because the father willfully withheld the father's love, care, and affection from the children during the determinative six-month period. Furthermore, the father's one unsuccessful request to visit the children during the six-months immediately preceding the filing of the termination petition did not undermine the trial court's ultimate finding and conclusion that the father willfully abandoned the children. In re J.D.C.H., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Termination of a father's parental rights on ground of neglect and abandonment was appropriate because the father did not comply with the father's case plan in that the father had positive drug screens, failed to engage in recommended substance abuse treatment, and was inconsistent with visitation of the father's children. Furthermore, when the father did attend visitation the father appeared to be under the influence of substances. In re X.P.W., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Trial court properly terminated a father's parental rights based on abandonment because the biological mother informed him of her pregnancy approximately four months prior to the child's birth, the father had no contact with the child, did not provide any care or support for the child during the 15 months from the time the child was born until he was incarcerated, and while incarcerated, he waited nearly two months to sign the Department of Social Services case plan, and could only verify that he completed one case plan item: a parenting class. In re A.J.P., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of the father's parental rights due to abandonment was supported by undisputed evidence that the father, at a minimum, possessed the ability to seek the child's contact information from his relatives but declined to do so for a number of years and, instead, the father withheld his love, care, and filial affection from the child, both in the statutorily relevant six-month period prior to the filing of the petition to terminate parental rights and in the years preceding that time span. In re M.S.A., - N.C. - , - S.E.2d - (Apr. 23, 2021).

The trial court improperly concluded that respondent did not willfully abandon his child notwithstanding his problems with alcohol where he made two inquiries regarding his child in 1993 and 1994 and one feeble attempt, during the relevant six months, at providing financial support by listing the child's name as his dependent on a work release application such that child support payments could be deducted from his pay but listed the wrong last name for his child and the name of the county as the child's address and failed to make any inquiry when no deductions were made by the Department of Corrections. In re McLemore, 139 N.C. App. 426, 533 S.E.2d 508 (2000).

V. ILLUSTRATIVE CASES.

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Second Petition Not Barred by Res Judicata. - Res judicata did not bar a second petition for the termination of a mother's parental rights as the substantive factual findings upon which the conclusions of law were based as to the grounds for termination of parental rights under subsection (a) of G.S. 7B-1111 all were based on facts that occurred after the first petition was filed; there was not an identity of issues between the first and second petitions. In re I.J., 186 N.C. App. 298, 650 S.E.2d 671 (2007).

Adoption by Grandparents. - Court did not err in deeming it likely that the grandparents would adopt the child, and it did not abuse its discretion in concluding that the child's best interests would be served by terminating the mother's parental rights because the grandparents did not lack the ability to obtain standing to adopt the child as they were the child's grandparents and legal custodians; they had raised the child since he was 18 months old; they wished to adopt him; by all accounts, the child was thriving in the grandparents' home; and the child's guardian ad litem recommended the termination of the mother's and the father's parental rights in order to facilitate the child's adoption by the grandparents. In re D.E.M., 254 N.C. App. 401, 802 S.E.2d 766 (2017), aff'd, 370 N.C. 463, 809 S.E.2d 567, 2018 N.C. LEXIS 55 (2018).

Mental Illness of Parent. - Department of Social Services failed to prove by clear and convincing evidence that due to mental illness, mother was incapable of providing for the care and supervision of her children, where the only evidence offered by DSS to show that mother was mentally incapable of caring for her children was the testimony of doctor who testified that the fact that someone carries a diagnosis of personality disorder does not mean that that person is incapable of raising children and that mother's pattern of behavior by itself did not mean that she was incapable of taking care of her children. In re Scott, 95 N.C. App. 760, 383 S.E.2d 690, cert. denied, 325 N.C. 708, 388 S.E.2d 459 (1989).

Department of Social Services failed to show by clear and convincing evidence that there was a reasonable probability that mother's mental illness would continue throughout the minority of her children, where doctor could not predict within a reasonable probability that mother's mental illness would so continue and where doctor testified that mother was currently experiencing her longest sustained period of improvement and that she had dealt with the stress of the hearing in a positive manner. In re Scott, 95 N.C. App. 760, 383 S.E.2d 690, cert. denied, 325 N.C. 708, 388 S.E.2d 459 (1989).

Termination of the mother's parental rights was in the child's best interests as the record provided overwhelming evidence that the mother's intentional actions created a substantial risk of serious physical injury to the child; evidence showed that the mother had Munchausen Syndrome by Proxy (MSBP) and that during the two years prior to the child being removed, the mother subjected the child to 25 different emergency room visits, 60 office visits to pediatricians, 143 prescriptions, and 8 admissions to the hospital and the mother made no substantial improvements to correct the conditions as the mother continuously failed to comply with a court order preventing the mother from providing child care services to other minor children while unsupervised and caring for animals and she continued to display the attention-seeking behaviors associated with the disorder. In re Greene, 152 N.C. App. 410, 568 S.E.2d 634 (2002).

Although a trial court found, inter alia, that a mother suffered from significant mental health issues, it terminated her parental rights pursuant to G.S. 7B-1111(a)(1) because she had neglected her daughter; however, because the mother's mental instability was so intertwined with a child's neglect, the trial court erred in failing to appoint a guardian ad litem for the mother pursuant to G.S. 7B-1101 at a parental rights termination hearing. In re J.D., 164 N.C. App. 176, 605 S.E.2d 643 (2004), cert. denied, 358 N.C. 732, 601 S.E.2d 531 (2004).

Order terminating the parental rights of both parents to four minor children was reversed on appeal, because the trial court erred by failing to appoint a guardian ad litem for the parents, who had significant mental health issues that bore directly on their ability to provide proper care and supervision of their children. In re B.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005).

G.S. 7B-1101.1 requires that a guardian ad litem be appointed in accordance with the provisions of G.S. 1A-1, N.C. R. Civ. P. 17 to represent a parent, meaning that where an allegation is made that parental rights should be terminated, a trial court is required to conduct a hearing to determine whether a guardian ad litem should be appointed to represent the parent, and an allegation under G.S. 7B-1111(a)(6) serves as a triggering mechanism, alerting the trial court that it should conduct a hearing to determine whether a guardian ad litem should be appointed; at the hearing, the trial court must determine whether the parents are incompetent within the meaning of G.S. 35A-1101, such that the individual would be unable to aid in their defense at the termination of parental rights proceeding, and the trial court should always keep in mind that the appointment of a guardian ad litem will divest the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005).

Americans with Disabilities Act did not prevent the state from terminating the mother's parental rights because the mother was mentally retarded. In re C.M.S., 184 N.C. App. 488, 646 S.E.2d 592 (2007).

Trial court erred in terminating a mother's parental rights because she had a substance abuse history and was schizophrenic, the allegations against her partly revolved around her multiple, serious mental health conditions, her mental illness was one of the facts that led to her child's removal, and the trial court failed to conduct an inquiry into whether it was necessary to appoint her a guardian ad litem. In re T.L.H., 237 N.C. App. 239, 765 S.E.2d 88 (2014).

Termination in Best Interests of Children. - Trial court did not abuse its discretion in finding termination of a mother's parental rights was in the best interests of the children because documentary evidence produced by the children's guardian ad litem noted that with therapy, the children would be able to be adopted; the trial court's order did contain a finding addressing the children's behavioral issues, and the trial court found that with continued therapeutic treatment, the likelihood of their adoption remained high. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).

Because the trial court's findings were based on clear, cogent, and convincing evidence of dependency, it properly terminated the mother's parental rights; the mother's longstanding mental health conditions and her repeated failures to follow recommendations for treatment necessary to care for her children safely constituted clear, cogent, and convincing evidence to support the trial court's findings of dependency. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).

Termination of the mother's parental rights was in the son's best interest as he had a strong bond with his current foster family and was forming a long-term attachment to them; he was receiving structure and stability from the foster family; he needed permanence and continued therapy; and the mother was no longer participating in his therapy and had not called to inquire about his welfare. In re A.R.A., 373 N.C. 190, 835 S.E.2d 417 (2019).

Trial court properly terminated a father's parental rights in his son because the son's potential placement with a relative was not a factor it was required to consider or make findings about during the dispositional phase of the termination of parental rights proceeding; the trial court determined that the child's best interests would be served by remaining in the custody of the county department of health and human services rather than being placed with a relative. In re S.D.C., 373 N.C. 285, 837 S.E.2d 854 (2020).

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).

Mother was entitled to a guardian ad litem where the petition to terminate her parental rights alleged that depression and personality and emotional problems rendered her unable to parent her child; because the trial failed to appoint a guardian ad litem for the mother, the termination order was reversed and the case was remanded. In re S.B., 166 N.C. App. 494, 602 S.E.2d 694 (2004).

Mental Retardation. - The appellate court would not incorporate a diligent efforts mandate in a statute devoid of such language; if due diligence is to be a requirement of the mental retardation ground for termination, that is a matter for the legislature, the courts having no right to expand statutory terms. In re Guynn, 113 N.C. App. 114, 437 S.E.2d 532 (1993).

Alcohol Abuse - Evidence of record supported the trial court's findings of fact, which in turn supported its legal conclusion that the father's protected status as parent was not constitutionally displaced; except for two driving while impaired convictions, there was no evidence that the father drank to the point of intoxication, regularly or ever, the father had driven only once on a public road after his license had been revoked as he drove to the grandmother's house after learning that the children's mother had died, and the trial court could not discern any problem with the father's employment or economic situation as the father had been with the same employer for eight years and had a good record as an employee. Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003).

Failure to Show Positive Response to Efforts of DSS. - Record supported judge's finding of parents' failure to show a positive response to the continuing efforts of the Department of Social Services to assist them so as to reestablish the family unit. Herell v. Taylor, 97 N.C. App. 57, 387 S.E.2d 230 (1990).

Where a jailed father asked not to be taken to court to appear at a parental rights termination hearing, it showed that the child was not a priority and that the child was a neglected and abandoned; termination of the father's parental rights was therefore in the child's best interest. Whittington v. Hendren (In re Hendren), 156 N.C. App. 364, 576 S.E.2d 372 (2003).

Lack of Willigness to Establish Safe Home. - Record supported the trial court's finding that respondent lacked the willingness or ability to establish a safe home and thus the trial court did not err by concluding that grounds existed to terminate respondent's parental rights; she had a history of unstable housing, she had not satisfactorily completed her case plan, and the child was sexually abused while in respondent's care during a time when she was living in a motel room, and she did not believe he was sexually abused. In re T.N.H., 372 N.C. 403, 831 S.E.2d 54 (2019).

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).

Findings of Fact Inadequate. - Trial court's findings that father had willfully left children in foster care for more than 12 months and that father had failed to pay a reasonable portion of the cost of caring for children were inadequate because, in large part, they were merely a recitation of allegations that a department of social services made in its petition seeking termination of parental rights and did not provide specific findings of the facts established by the evidence, admissions, and stipulations. In re Anderson, 151 N.C. App. 94, 564 S.E.2d 599 (2002).

In a case in which a mother appealed a trial court's termination of her parental rights and the trial court failed to make a determination which directly addressed whether the mother lacked an appropriate alternative child care arrangement, further findings of fact by the trial court on that issue were required. In re N.B., 200 N.C. App. 773, 688 S.E.2d 713 (2009).

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).

Appellate court found that remand for a new termination of parental rights hearing was necessary because there was no evidence presented at trial that would have supported termination of a parent's parental rights based upon dependency. In re O.J.R., 239 N.C. App. 329, 769 S.E.2d 631 (2015).

Trial court erred in terminating a mother's parental rights because its order was internally inconsistent and thus, unreviewable; there were contradictory findings as to the mother's mental health care and her domestic violence issues, and the factor of financial assistance to potential adoptive parents seemed to outweigh the close emotional bonds between the mother and children and her efforts to regain custody. In re A.B., 239 N.C. App. 157, 768 S.E.2d 573 (2015).

Trial court erred in terminating the mother's parental rights based on failure to make reasonable progress, because it did not address her progress or lack thereof leading up to the termination hearing and its findings were insufficiently specific to support the ultimate finding that defendant failed to make reasonable progress toward correcting the conditions that led to removal of the child. In re Z.D., 258 N.C. App. 441, 812 S.E.2d 668 (2018).

Termination of the mother's parental rights based on dependency was not supported by evidence that the mother was incapable of caring for her son and that such incapability would continue for the foreseeable future. In re Z.D., 258 N.C. App. 441, 812 S.E.2d 668 (2018).

Because the trial court failed to make the required statutory finding regarding an appropriate alternative child care arrangement, and no evidence was presented that would have allowed the court to make such a finding, reversal of the court's conclusion that dependency provided a ground for termination of parental rights was appropriate. In re K.C.T., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Trial court's order determining that the father's parental rights in the daughter were subject to termination on the basis of neglect lacked sufficient support, although remand was required because the record contained evidence from which the trial court could, if it elected to do so, find that a repetition of neglect would be probable in the event that the daughter was returned to the father's care. In re Z.J.W., - N.C. - , - S.E.2d - (Mar. 12, 2021).

When Written Findings Not Required. - Since there was no conflicting evidence about either the likelihood of each child's adoption if the mother's rights were terminated or one child's strong bond with his prospective adoptive parents, no written findings were required in this regard; as no prospective permanent placement had been identified for the other two children, that factor did not apply. The trial court did not violate the statutory mandate as to its determination of the children's best interests. In re J.S., 374 N.C. 811, 845 S.E.2d 66 (2020).

Order Internally Inconsistent. - Trial court erred in terminating a mother's parental rights because the contradictory nature of its findings of fact and conclusions of law prohibited the court of appeals from adequately determining if they supported its conclusions of law that the mother failed to make reasonable progress toward correcting the conditions that led to the removal of the children from her care and custody and terminating her parental rights was in the children's best interests. In re A.B., 239 N.C. App. 157, 768 S.E.2d 573 (2015).

Rights of imprisoned parent properly terminated. - Evidence supported the conclusion that the mother was incapable of providing for the care of the child, that this incapacity would continue, and that the mother failed to provide any viable alternative child care arrangements; the mother had been continuously incarcerated since September 2011, nothing indicated that she would be released from incarceration in the foreseeable future, and thus the trial court did not err in finding there was a reasonable probability that her incapability would continue for the foreseeable future, and her proposed caretakers were deemed unsuitable. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49 (2014).

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).

Rights Properly Terminated. - The trial court properly terminated respondent mother's parental rights in her two children where the evidence supported findings by the court that the children were neglected children within the meaning of former G.S. 7A-278(4) and that respondent failed to pay any portion of their foster care costs for more than six months preceding the filing of the petition as called for under subdivision (4) of former G.S. 7A-289.32 (see now this section). In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236 (1981).

The following findings supported the court's conclusions that 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. 137, 330 S.E.2d 513 (1985).

A trial court had sufficient evidence upon which to base its order for termination of parental rights where the evidence included unrefuted testimony that the family home was in a constant state of disarray and uncleanliness, that the mother often seemed incoherent, tending to stare off and to ignore those around her, and that the father stated that he was unwilling to let the children remain in the home because his violent temper made it unsafe for the children to be with him and that he threatened to lock and bar the door and starve the children if they were not removed. In re Black, 76 N.C. App. 106, 332 S.E.2d 85 (1985).

Where prior to removal of children from their home, the mother's boyfriend had abused the children, the children had been treated in the local hospital emergency room for five different incidents of ingestion of foreign materials, and the mother and children had lived in four different locations over an 18-month period, and where mother missed 25 out of 59 scheduled visits while children were in foster care, attended only six out of 22 scheduled parenting classes, was terminated from mental health counseling because of nonattendance, moved her residence seven times, failed to advise Department of Social Services of her whereabouts for a period of 14 months, and married the boyfriend who had been found to have abused her children, the court properly terminated mother's parental rights. In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).

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 former G.S. 7A-289.32(2) and 7A-517(21). Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Trial court properly considered all of the evidence in concluding as law that minor children were neglected juveniles and then properly terminated the parental rights of the parents pursuant to this section. Smith v. Alleghany County Dep't of Social Servs., 114 N.C. App. 727, 443 S.E.2d 101, cert. denied, 337 N.C. 696, 448 S.E.2d 533 (1994).

The findings overwhelmingly established a basis for surviving respondent mother's motion to dismiss termination action, where there was substantial evidence of neglect including domestic violence between respondent and her live-in boyfriend, inappropriately leaving the child in the care of others, respondent's illegal drug use and distribution in the presence of the child, an overall history of lawlessness, respondent's repeated incarcerations and a prior adjudication of neglect. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001).

Termination of father's parental rights was proper where: (1) the father never had a custodial relationship with his 13 year old child, nor did he have any significant personal or financial relationship with the child other than an occasional letter and a total of $125 in monies and gifts; (2) the relationship was unlikely to change in the future due to the father's lengthy incarceration and the child's unwillingness to see him; and (3) the father's only alternative for providing for the care of the child was through the assistance of his parents, who had no relationship with the child, and even failed to attend the termination of parental rights hearing. In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002).

Evidence that the mother of two minor children had performed practically none of the things required by the court at the time that the children had been placed in foster care a year before, to include the fact that the mother had not even attended the termination hearing despite her attorney's efforts to contact her and to get her to attend, supported trial court's findings terminating the mother's parental rights. In re Frasher, 147 N.C. App. 513, 555 S.E.2d 379 (2001).

Termination of parental rights was proper because clear, convincing, and cogent evidence showed the mother failed to make reasonable progress in correcting the condition, substance abuse, which led to the removal of her children. In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 237 (2002).

Trial court properly terminated the mother's parental rights where the evidence showed 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 and that the mother's neglectful behavior was likely to continue for the foreseeable future because she had a long history of being incarcerated for various criminal offenses as well as a long history of substance abuse and failure to address those problems with necessary treatment. Lechuga v. Ore (In re Ore), 160 N.C. App. 586, 586 S.E.2d 486 (2003).

Trial court did not abuse its discretion in terminating a father's parental rights because grounds for termination existed under G.S. 7B-1111(a)(5) where, in the three-and-a-half years since the mother told the father that she was pregnant and that he was the father, and until the mother contacted him about child support, the father had expressed no interest in discovering whether the mother had given birth, in determining whether the child was his, or in taking responsibility for the child. In re T.L.B., 167 N.C. App. 298, 605 S.E.2d 249 (2004).

Trial court properly terminated the parental rights of a mother and father to their child pursuant to G.S. 7B-1111(a)(9), because Michigan had previously terminated the parents' rights to other children, and the parents were unable or unwilling to establish a safe home for the child based on the parents' mental and physical illnesses. In re V.L.B., 168 N.C. App. 679, 608 S.E.2d 787 (2005), cert denied, - N.C. - , 614 S.E.2d 924 (2005).

There were sufficient findings to support the termination of parental rights order, including the fact that the father failed to propose an alternate replacement to take care of the children, that the father failed to provide any contact, love, or affection for the children, and that the father failed to attempt to contact the children while he was incarcerated. In re D.J.D., 171 N.C. App. 230, 615 S.E.2d 26 (2005).

Mother's parental rights were properly terminated, under G.S. 7B-1111(a)(1) and (2) as she neglected her children and willfully left them in foster care for more than 12 months without showing reasonable progress, after the children had been returned to her once, as clear, cogent and convincing evidence showed she did not (1) complete required parenting, budgeting, and homemaking classes, (2) obtain mental health counseling, (3) have a phone, or (4) keep a clean home, and she offered no specific plan for the children's care while she worked, if they were returned, and the evidence showed her residential instability. 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).

G.S. 7B-1111(a)(2) provides for termination of parental rights if a parent has willfully left a juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile, and willfulness may be found where a parent has made some attempt to regain custody of the child but has failed to exhibit reasonable progress or a positive response toward the diligent efforts of a department of social services; extremely limited progress is not reasonable progress. 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).

Fact that the father could have written but did not do so, that he made no efforts to provide anything for the minor child, that he did not provide any love, nurturing, or support for the minor child, that he would continue to neglect the minor child if she were placed in his care, and that he would be incarcerated until the child reached the age of majority provided clear, cogent, and convincing evidence to support the termination of his parental rights. 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).

Evidence including the transient state of the mother's housing, the mother's untreated hygiene issues, and the mother's failure to complete parenting classes was sufficient to support termination of the mother's parental rights under G.S. 7B-1111(a)(9). In re L.A.B., 178 N.C. App. 295, 631 S.E.2d 61 (2006).

While the father complied with a number of elements of his case plan, the termination of father's parental rights under G.S. 7B-1111(a)(2) was supported by evidence that the father continued to reside with the mother who had an untreated substance abuse problem she would not admit to. In re S.N., 180 N.C. App. 169, 636 S.E.2d 316 (2006).

Father's assignments of error concerning the delay in filing a termination petition and other alleged technical errors did not provide a basis for overturning the trial court's order terminating his parental rights where the father failed to allege any prejudice to him or the child as a result of the technical errors. In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006).

Mother's parental rights were properly terminated where notice of the petition to terminate was properly and timely served pursuant to G.S. 1A-1-5, the petition alleged three grounds for termination, including neglect, and the petition had incorporated the trial court's prior orders concerning the child, as well as the facts associated with those orders, thereby providing the factual allegations supporting the legal bases. In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006).

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).

Termination of a father's parental rights was affirmed because the trial court's findings regarding the father were properly supported by clear, cogent, and convincing evidence, and its findings supported its conclusions; the trial court found that the father abused two of his children, neglected his children, and willfully left his children in foster care for more than 12 months without showing reasonable progress. In re N.B., 183 N.C. App. 114, 644 S.E.2d 22 (2007).

Termination of a mother's parental rights to her children pursuant to G.S. 7B-1111(a)(8) was affirmed because the trial court's findings fully supported its determination that the mother committed voluntary manslaughter, as the evidence indicated that the child died from injuries arising from abuse, and the trial court properly admitted evidence pursuant to hearsay exceptions, as a medical examiner's report was admissible under G.S. 8C-1-803(8) as a public record, and a police officer was properly allowed to testify as to statements by the mother's daughter that she saw her mother hit the deceased child on the head pursuant to the excited utterance exception. In re J.S.B., 183 N.C. App. 192, 644 S.E.2d 580 (2007).

When the mother was adjudicated competent, it established only that the mother regained the capacity to manage the mother's own affairs, not that the mother, facing a termination of parental rights petition, had the capacity to provide proper care and supervision for the child; in terminating the mother's parental rights the court was entitled to find, based on the mother's three-year history of relapses, that there was a reasonable probability that the mother's incapacity resulting from substance abuse disorder would continue. In re A.H., 183 N.C. App. 609, 644 S.E.2d 635 (2007).

Termination of mother's parental rights under G.S. 7B-1111(a)(2), was supported by evidence that, other than forensic psychological exam, the mother failed to follow through with any of the other activities regarding parenting, therapy, anger management, or medication management. In re C.M.S., 184 N.C. App. 488, 646 S.E.2d 592 (2007).

Trial court's findings that the father failed to make reasonable progress were based on clear, cogent, and convincing evidence stemming from the period of time between the child's initial removal and the entry of the consent order granting guardianship to the guardians, as required by G.S. 7B-1111(a)(2); the findings included that the father only sporadically complied with the case plans and failed to show any positive response to assistance efforts, willfully refused to stop using marijuana, and displayed inappropriate behavior and unwarranted hostility toward the department of social services, the foster parent, and the guardians. 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).

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).

Termination of a mother's parental rights for willful abandonment under G.S. 7B-1111(a)(2) was supported by the evidence as: (1) the mother was required to complete a domestic violence program and a mental health assessment, and to follow through with recommendations; (2) the mother entered the domestic violence program, but was terminated for lack of attendance; (3) the mother reentered, and attended 25 sessions, but was terminated for dishonesty because she did not disclose to the program administrators that she was pregnant, and actively hid her pregnancy; (4) the mother failed to attend therapy sessions on a regular basis as recommended; and (5) a finding that the mother continued her relationship with the father was supported. In re J.Z.M., 191 N.C. App. 158, 663 S.E.2d 435 (2008).

Trial court's findings were sufficient to support its conclusion that a parent's lack of progress justified termination of parental rights under G.S. 7B-1111(a)(2). The parent had not successfully completed substance abuse treatment or parenting classes, and the parent's extremely limited progress was not reasonable progress. In re S.N., - N.C. App. - , - S.E.2d - (Oct. 21, 2008).

Although the father had made some progress, termination of father's parental rights was proper because, at the time of the termination hearing, the father was unemployed, had not maintained suitable housing, had not participated in court-ordered anger management counseling, and continued to allow one of the children to be in the presence of the mother despite numerous court orders prohibiting any contact between the mother and the children. In re N.A.L., 193 N.C. App. 114, 666 S.E.2d 768 (2008).

Trial court did not err in ruling that grounds existed to terminate a mother's parental rights to her child pursuant to G.S. 7B-1111(8) because the trial court's findings of fact supported its conclusion that the mother committed a felony assault that resulted in serious bodily injury to another child in her care; the mother did not assign error to that conclusion of law, which precluded review of the conclusion on appeal under N.C. R. App. P. 10(a). In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008), review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).

Parental rights were properly terminated under G.S. 7B-1111(a)(2) because the parents had not made progress in correcting the conditions that had led to the child's removal, particularly as they had not completed parenting classes, the mother had not provided proper care for the child during scheduled visits, and both parents continued to test positive for drug use. 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).

Termination of the father's parental rights under G.S. 7B-1111(a)(2) and (3) was supported by the fact that the father did not contest the trial court's conclusion that the father willfully failed to pay reasonable portion of cost of care for child, and that fact that the evidence showed, inter alia, that the father failed to stay drug free, maintain suitable housing for child, or complete behavioral program. In re D.H.H., 208 N.C. App. 549, 703 S.E.2d 803 (2010).

Clear and convincing evidence supported the trial court's conclusion that parental rights could be terminated pursuant to G.S. 7B-1111(a)(9) because: (1) the parent's therapist testified that the parent had consistently been in domestic violence situations which caused the therapist to call the parent's judgment into question about who the parent had living with the parent; (2) the therapist expressed a concern that something really bad at some point could happen to the child; (3) the therapist opined that the parent had the ability to establish a safe home for the child; and (4) a foster care social worker testified that the worker was not certain that the child would be safe if the parent was not on the parent's medication and that parent had a history of inviting people to stay in the parent's home that often had problems and the parent had a history of getting into physical altercations with people in the home or relatives. In re D.J.E.L., 208 N.C. App. 154, 701 S.E.2d 1 (2010), review denied 706 S.E.2d 232, 2011 N.C. LEXIS 40 (2011).

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 properly determined that grounds existed to terminate a mother's parental rights to her minor child pursuant to G.S. 7B-1111(a)(6), as an acquaintance had been awarded custody of the child due to the mother's substance abuse problems and abandonment of the child; she could not unilaterally decide that she no longer wanted the acquaintance to have custody of the child. In re K.O., 223 N.C. App. 420, 735 S.E.2d 369 (2012).

In terminating the mother's parental rights, the trial court properly found that there was a reasonable probability that the mother's incapability of caring for the child would continue for the foreseeable future due to her incarceration. In re L.R.S., 237 N.C. App. 16, 764 S.E.2d 908 (2014).

Trial court properly terminated the mother's parental rights due to neglect, as there had been a prior finding of neglect and there would be a probable repetition of neglect if the child were returned to the mother given her failure to comply with the recommendations made following psychiatric evaluations, her completion of only five of twelve sessions in a domestic violence program, her continued contact with the father, failure to complete her parenting classes, and inability to keep a job. In re M.J.S.M., 257 N.C. App. 633, 810 S.E.2d 370 (2018).

Termination of the father's parental rights was proper as the child was a dependent juvenile because the father conceded that due to his lengthy incarceration he could not provide care or supervision to the child; his proposed relative placement with the father's mother was not possible as she stated she had failing health and was residing in a retirement community that did not allow children; and his proposed relative placement with the father's sister was not a viable option as the child had been in level IV psychiatric treatment and had been moved to a level III group home, and no relative placement would currently be appropriate based on the level of care the child required. In re N.N.B., - N.C. App. - , 843 S.E.2d 474 (2020).

Unchallenged findings showed the mother repeatedly prioritized her relationship with the father over the safety of the children by continuing to allow the father around the children and by violating court orders and the mother's refusal to acknowledge the effect of domestic violence on the children and her inability to sever her relationship with the father supported the trial court's determination that the neglect of the children would likely be repeated if they were returned to the mother's care, making termination proper. State v. Palmer, - N.C. App. - , - S.E.2d - (Aug. 18, 2020).

Termination of the mother's parental rights was proper based on a failure to correct the conditions that led to the removal of the juveniles as the mother had unaddressed substance abuse issues, the condition of the home was unsafe, and she failed to attend medical and developmental appointments for the juveniles. In re A.H.F.S., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of the father's parental rights was proper based on a failure to correct the conditions that led to the removal of the juveniles as the mother and father continued to reside together, and their primary residence was still unsafe. In re A.H.F.S., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Father's contention that his conduct did not evince a settled purpose to forego all parental duties or to relinquish all parental claims was unavailing given the unchallenged findings of fact which showed that the father petitioned for legal custody and visitation rights before the determinative period began but took no further action. The father also did not provide any emotional or material support even though he could have, and the father's actions as found by the trial court, which led to the entry of the restraining order, supported a reasonable inference of willfulness. In re I.R.M.B., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Termination of the mother's parental rights was proper, as the child had been in foster care for more than 26 months, the mother did not adequately address her substance abuse, she had only been in her current housing for two months, which was inadequate, and she had not established stable employment. Thus, the trial court properly determined that the mother's tenuous, limited progress on the issues that directly led to the child's prior adjudication was not enough to diminish the probability that child would likely be neglected again. In re B.T.J., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Termination of the mother's parental rights was proper, as she conceded that she left her children in foster care for 16 months, exceeding the 12 months required to terminate parental rights, and, contrary to the mother's arguments, the trial court's findings involving the ample time she had to make progress on her case plan, her failure to adequately address her substance abuse and mental health issues, and the willfulness of her actions were all supported by clear, cogent, and convincing evidence. In re A.M.L., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Trial court properly determined that the mother's parental rights could be terminated because the mother did not make a reasonable effort to correct the issues attributable to her relationship with one child's father and the prevalence of domestic violence that led to the children's removal from her care. Instead, she prioritized her relationship with that father while falsely and repeatedly claiming that the relationship had ended, evincing a willful failure to make reasonable progress in addressing her issues with domestic violence. In re L.N.G., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Order terminating the mother's parental rights was supported by evidence that she failed to follow through with parenting classes, submitted to substance abuse assessments but had not complied with recommended services or requested drug screens, had not provided documentation of her reported employment, failed to turn herself in for a probation violation, failed to follow through with mental health assessments and appointments, and fabricated the death of her mother as an excuse to miss a review meeting. In re G.D.H., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Order terminating the father's parental rights was supported by clear, cogent, and convincing evidence and was based on proper legal grounds. Despite the earlier order requiring the father to demonstrate changes learned relating to domestic violence, to resolve criminal matters, and to be of lawful behavior, he was found guilty of multiple infractions during his incarceration including gang behavior, assault on staff, possessing a weapon, and coordinating an assault. In re A.R.W., - N.C. - , - S.E.2d - (Apr. 23, 2021).

After conducting a review of the entire record and the issues identified by counsel in the no-merit brief, the supreme court was satisfied that the trial court's orders terminating the father's parental rights in the children were supported by clear, cogent, and convincing evidence, including the father's denying any instance of domestic violence, and based on proper legal grounds. In re P.M., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Rights Not Properly Terminated. - In a proceeding to terminate parental rights, where the evidence showed that, except for one 10-minute interval when mother left child alone with its father, who abused the child, the mother had not abused or neglected the child, such evidence did not support a termination order. In re Alleghany County Dep't of Social Servs. v. Reber, 75 N.C. App. 467, 331 S.E.2d 256 (1985), aff'd, 315 N.C. 382, 337 S.E.2d 851 (1986).

There was not clear, cogent, and convincing evidence of mental retardation of either parent to justify terminating their parental rights. In re LaRue, 113 N.C. App. 807, 440 S.E.2d 301 (1994).

Evidence held insufficient to support the grounds for termination of parental rights. In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997).

The trial court erred in terminating a father's parental rights on the grounds of the father's incapability of caring for the child pursuant to G.S. 7B-1111(a)(6) (2001); the father was scheduled to be released from prison shortly, and there was no evidence at trial to suggest that respondent suffered from any physical or mental illness or disability that would prevent him from providing proper care and supervision for the child, nor did the trial court make any findings of fact regarding such a condition. In re Clark, 151 N.C. App. 286, 565 S.E.2d 245 (2002), cert. denied, 356 N.C. 302, 570 S.E.2d 501 (2002).

Where the child of respondent mother was removed from her because of the mother's drug use, but, during the 12 months prior to the filing of a petition to terminate her parental rights, the mother successfully completed a drug abuse treatment program, tested negative for drugs on several occasions, attended a drug abuser's support group, maintained regular employment as a nurse, and showed herself to be a fit and proper person for visitation, such evidence showed that the mother had made reasonable progress under the circumstances in correcting the conditions that led to the removal of the child; therefore, the trial court erred in terminating the mother's parental rights. In re Pierce, 356 N.C. 68, 565 S.E.2d 81 (2002).

No evidence or finding suggested that the mother's "social phobia" led or contributed to the parents' failure to provide the children with sufficient food, nutrition, or hygiene, and thus, the trial court's finding that the mother failed to make reasonable progress to reunite with her children because she failed to seek services to address her "social phobia" was without statutory authority. In re D.L.W., 241 N.C. App. 32, 773 S.E.2d 504 (2015).

In the absence of finding willful failure as supported by clear, cogent and convincing evidence, the trial court erred in concluding the mother's lack of stable employment and transportation showed a lack of reasonable progress towards correcting those conditions which led to the removal of the children. In re D.L.W., 241 N.C. App. 32, 773 S.E.2d 504 (2015).

Termination of the mother's parental rights due to an inability to provide proper care an supervision was improper, as the Department of Health and Human Services failed to show that substance abuse would prevent the mother from providing for the proper care and supervision of the children. In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015).

In a private termination action, the trial court erred in terminating the father's parental rights, and the termination order was reversed because the petition for termination did not allege that his parental rights were subject to termination based on abandonment; there was no evidence that the father had any court-ordered obligation to pay child support; and the trial court failed to make required findings on the ground that the father failed to legitimate the child. In re J.M.K., 261 N.C. App. 163, 820 S.E.2d 106 (2018).

Reasonable Progress Shown. - Mother made reasonable progress in correcting the conditions that led to the removal of her children during more than 12 months that the children were in the custody of the Department of Social Services; among other things she attended family education sessions and parenting classes, acquired appropriate housing, and maintained her home. In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005).

Failure to Show Progress. - Termination of the mother's parental rights based on the ground of failure to make reasonable progress was proper because she had not maintained stable employment for a minimum of six months; she failed to obtain stable housing for at least six months as her frequent moves constituted evidence of housing instability, and she was days shy of having resided at her current residence for the designated six-month period of time; and she failed to complete the recommended treatment needed to fully address the core issues of substance abuse and domestic violence which had played the largest roles in the children's removal. In re I.G.C., 373 N.C. 201, 835 S.E.2d 432 (2019).

Termination of the mother's parental rights was proper based on her willful failure to make reasonable progress because, inter alia, the mother voluntarily placed the children in the custody of the county department of social services so that the father could live with her; and she failed to protect her children by allowing the father, who had assaulted her and two of the children, to return to the family home. In re A.R.A., 373 N.C. 190, 835 S.E.2d 417 (2019).

Evidence and findings of fact supported the trial court's conclusion that a mother failed to make reasonable progress toward correcting the conditions which led to the removal of the mother's child from the mother's care because, after participating in a drug rehabilitation program, the mother decided to address the mother's long-standing addiction issue solely by entering a methadone program without any counseling plan to resolve the mother's resultant dependence on that substance. In re A.B.C., 374 N.C. 752, 844 S.E.2d 902 (2020).

Termination of a mother's parental rights was appropriate because the mother made little progress in satisfying the mother's case plan as the mother failed to complete parenting classes, had not scheduled a mental health assessment, had not completed substance abuse classes, had refused to participate in domestic violence treatment, had failed to submit to drug screens, had not visited with the children in months, and had been charged with drug related criminal offenses. In re G.L., - N.C. - , - S.E.2d - (Nov. 20, 2020).

In Determining Whether Adequate Services Were Provided Court Properly Considered Progress Up Until Time of Hearing. - Nothing in the record supported the mother's contention that the trial court erred in terminating the mother's parental rights because the Department of Social Services failed to provide the mother with adequate services upon the mother's reaching the age of majority. The mother reached the age of majority more than a year before the termination hearing and the trial court properly considered evidence of the mother's progress up until the time of the hearing. In re J.G.B., 177 N.C. App. 375, 628 S.E.2d 450 (2006).

Child Not Dependent Juvenile. - 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).

VI. WILLFULLY LEAVING CHILD IN FOSTER CARE.

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Construction of "Conditions of Removal." - 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).

Construction of "Conditions of Removal." - Nothing in the statutory language suggests that the only "conditions of removal" that are relevant to a determination of whether a particular parent's parental rights in a particular child are subject to termination pursuant to G.S. 7B-1111(a)(2) are limited to those which are explicitly set out in a petition seeking the entry of a nonsecure custody order or a determination that a particular child is an abused, neglected, or dependent juvenile. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).

Period of Foster Care Need Not Be Continuous. - In view of the 1985 amendment to subdivision (3) of former G.S. 7A-289.32 (see now this section), which prior to the amendment required the parent to have left the child in foster care "for more than two consecutive years," but was amended to shorten the period to an excess of 18 months (now 12 months) and to eliminate the word "consecutive," the period of foster care need not be 18 continuous months. Herell v. Taylor, 97 N.C. App. 57, 387 S.E.2d 230 (1990).

Period of Foster Care Under "Court Order." - Mother's parental rights to three children were properly terminated under G.S. 7B-1111(a)(2) because the children had been in an out-of home-placement since March 2008 neglect proceedings, and the court's order converting the neglect case into a civil custody case, pursuant to G.S. 7B-911, qualified as a "court order" under G.S. 7B-1111; the children were placed with the paternal grandparents after the neglect proceedings and, after a permanency planning review in September 2008, the grandparents were awarded legal and physical custody. In re L.C.R., 226 N.C. App. 249, 739 S.E.2d 596 (2013).

Two Part Analysis to Be Performed By the Court. - Trial court, to find grounds to terminate a parent's rights under G.S. 7B-1111(a)(2), must perform a two part analysis, as the trial court must determine by clear, cogent and convincing evidence: (1) that a child has been willfully left by the parent in foster care or placement outside the home for over 12 months; and (2) as of the time of the hearing, also as demonstrated by clear, cogent and convincing evidence, that the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child. Evidence and findings which support a determination of reasonable progress may parallel or differ from that which supports the determination of willfulness in leaving the child in placement outside the home. 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).

The grounds which render a putative father's consent to adoption unnecessary under G.S. 48-6(a)(3) are identical to the grounds for terminating his parental rights under subdivision (6) of former G.S. 7A-289.32 (see now this section). While termination of a putative father's rights may precede an adoption petition, prior termination of his rights under this Chapter is not necessary if, under the applicable provisions of Chapter 48, his consent to the adoption is not necessary; his parental rights are then terminated by the final order of adoption under G.S. 48-23. In re Clark, 95 N.C. App. 1, 381 S.E.2d 835 (1989), rev'd on other grounds, 327 N.C. 61, 393 S.E.2d 791 (1990).

Under subdivision (3) of this section as it read prior to amendment in 1985, petitioner had to prove the absence of both substantial progress and positive response in order to justify terminating respondents' parental rights. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

"Willful Abandonment" Compared. - Although the breadth of "willful abandonment" should often encompass "willfully leaving" a child in foster care, the broad finding of willful abandonment is not essential to the more limited determination required under subdivision (3) of this section. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

"Willful" Defined. - In the context of a termination based on willful abandonment, the word "willful" connotes purpose and deliberation; however, under this section willfulness is something less than willful abandonment. In re Nolen, 117 N.C. App. 693, 453 S.E.2d 220 (1995).

Under former G.S. 7A-289.32 (see now this section), willfulness means something less than willful abandonment. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996).

"Willfulness" when terminating parental rights on the grounds of G.S. 7B-1111(a)(2), is something less than "willful" abandonment, is not precluded even if the respondent has made some efforts to regain custody of the children, and may be found where the parent, recognizing her inability to care for the children, voluntarily leaves the children in foster care. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

Notice Issues. - In view of the fact that nothing in the relevant statutory provisions limits the "conditions for removal" to those specified in any initial abuse, neglect, or dependency petition or any subsequent amendment to that petition and the fact that the department adequately alleged that it was seeking to terminate respondent-mother's parental rights in the mother pursuant to G.S. 7B-1111(a)(2), the notice-related concerns expressed by the Court of Appeals did not justify overturning the trial court's termination order. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).

Termination of a mother's parental rights was inappropriate because the mother's child entered the custody of family relatives when the mother agreed to a voluntary kinship placement. Although the relatives later obtained full custody of the child through a civil custody order, that order did not provide sufficient notice to the mother that the mother's parental rights would be imperiled by the loss of custody or inform the parent what steps would be necessary to make reasonable progress and avoid termination. In re K.C.T., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Incarceration of respondent, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

In a termination of parental rights proceeding, the trial court's findings were not sufficient to support its conclusion that a father willfully left his child in foster care for more than 12 months without making reasonable progress to correct the conditions which led to the child's removal under G.S. 7B-1111(2), because there were no findings as to the father's progress or lack thereof during the relevant 12-month period before the termination petition was filed, and the father had been incarcerated during those 12 months and had no involvement in the events which led to the child's removal. In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003).

Evidence did not clearly and convincingly show that a father willfully left two minor children in foster care without making reasonable progress to correct the conditions where the father was incarcerated when the minor children were adjudicated neglected, and, pursuant to the case plan, the father maintained contact with the department of social services, attended on-going substance abuse treatment, and completed the only parenting class offered by the Department of Correction, but did not attend anger management because this type of class was not offered at the prisons in which he had been placed. In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012).

Compliance with Case Plan Relevant. - There is judicial recognition that parental compliance with a judicially adopted case plan is relevant in determining whether grounds for termination exist pursuant to G.S. 7B-1111(a)(2) even when there is no direct and immediate relationship between the conditions addressed in the case plan and the circumstances that led to the initial intervention, as long as the objectives sought to be achieved by the case plan provision address issues that contributed to causing the circumstances that led to the juvenile's removal from the home. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).

As long as a particular case plan provision addresses an issue that, directly or indirectly, contributed to causing the juvenile's removal from the parental home, the extent to which a parent has reasonably complied with that case plan provision is, at minimum, relevant to the determination of whether that parent's parental rights in his or her child are subject to termination for failure to make reasonable progress pursuant to G.S. 7B-1111(a)(2). In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).

Nexus Between Case Plan And Conditions of Removal. - Necessary nexus between the components of the court-approved case plan with which the mother failed to comply and the conditions which led to the child's removal from the home existed in this case; the trial court's unchallenged findings of fact, including those regarding the mother's failure to comply with her case plan, adequately supported the trial court's conclusion that she willfully left the child in the department's custody for a period of 12 months without making reasonable progress toward correcting the conditions that led to the child's removal from the home. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).

Reasonable Progress Standard. - Reasonable progress standard enunciated in G.S. 7B-1111(a)(2) did not require the mother to completely remediate the conditions that led to the children's removal or to render herself capable of being reunified with her children. In re J.S., 374 N.C. 811, 845 S.E.2d 66 (2020).

Failure to Show Progress. - A court cannot terminate respondents' parental rights under subdivision (3) of former G.S. 7A-289.32 (see now this section) absent the necessary additional conclusion and supporting findings that respondents failed to show substantial progress (now reasonable progress under the circumstances) in correcting the conditions leading to the removal of their children. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

The trial court did not abuse its discretion in concluding that it was in the nine-year-old child's best interests that respondents' parental rights be terminated where voluminous evidence in the record documented the child's special needs, and his mother' unwillingness to meet them, where the evidence supported a finding that the father abused the child, refused to seek counseling to address his emotional problems, and willfully left the child in foster care for more than 12 months without making reasonable progress toward reunification, and where neither parent had contributed financially to the child for many months. In re McMillon, 143 N.C. App. 402, 546 S.E.2d 169 (2001).

The evidence and the trial court's findings regarding respondent's substance abuse did not support the conclusion that mother had failed to make "reasonable progress under the circumstances in correcting those conditions which led to the removal of the child" to foster care, as required by former G.S. 7A-789.32(3), where there was no evidence that the mother had used drugs for over two years, and evidence showed that she had successfully completed drug treatment, including random drug screens, attended Narcotics Anonymous, maintaining contact with her sponsor, and currently worked at a hospital, which required a drug screen before hiring her. In re Pierce, 146 N.C. App. 641, 554 S.E.2d 25 (2001), affirmed, 356 N.C. 68, 565 S.E.2d 81 (2002).

In a case in which after the Department of Social Services had filed a petition alleging that children were abused and neglected as a result of being placed with their grandfather, with whom their mother had placed them when the mother was sent to prison, mother and the children's father stipulated to findings of neglect, leading to the children's transfer to the Department's custody, and where at the time the petition was filed, the mother was living with a boyfriend, and did practically nothing to regain custody, not even attending the termination hearing, there was clear, cogent and convincing evidence to support the trial court's finding that the mother had left the children in foster care for a year without making reasonable progress in correcting the conditions that led to the children's placement in the first place. In re Frasher, 147 N.C. App. 513, 555 S.E.2d 379 (2001).

Trial court's findings were supported by evidence that the mother left her three children in foster care for over a year without showing reasonable progress; her fourth child's treatment and status were clearly relevant to show neglect. In re Johnston, 151 N.C. App. 728, 567 S.E.2d 219 (2002).

Trial court's finding that parents willfully left their son in foster care for more than 12 months without showing reasonable progress in correcting the conditions which resulted in the removal of their son was supported by clear, cogent, and convincing evidence where: (1) the mother's attendance at a one-day workshop did not evidence any real effort; (2) the mother steadfastly refused to participate in counseling and would not agree to change her methods of disciplining her son, which included whipping her son with a belt to the extent that marks and bruises resulted; and (3) the father completed an anger management class, but he had only a limited understanding of the concepts presented. In re Baker, 158 N.C. App. 491, 581 S.E.2d 144 (2003).

Termination of mother's parental rights by the trial court was affirmed, as the mother willfully left her juvenile child in foster care after the juvenile was adjudicated as neglected and dependent for more than 12 months, without showing the trial court reasonable progress under her circumstances. In re Clark, 159 N.C. App. 75, 582 S.E.2d 657 (2003).

Despite some efforts to comply with a trial court's order and Department of Social Service requirements shortly before the termination of parental rights proceeding, a mother's parental rights were terminated regardless of her good intentions where there was sufficient evidence to support the trial court's finding of her lack of progress during the year preceding the Department's petition to terminate her parental rights under G.S. 7B-1111(a)(2) for wilful abandonment; mother's failure to attend therapy sessions, her acts in repeatedly upsetting the child, leaving the child in foster care, failing to show sufficient parental skills, and failing to comply with a prohibition of having unrelated males in the home supported the order terminating the mother's parental rights. In re B.S.D.S., 163 N.C. App. 540, 594 S.E.2d 89 (2004).

Mother's parental rights were terminated, pursuant to G.S. 7B-1111(a)(2), because the mother willfully left her children in foster care for over 12 months, and clear, cogent, and convincing evidence demonstrated that the mother had not made reasonable progress to correct the conditions which led to the removal of the children as the mother failed to comply with a case plan in that she did not complete substance abuse programs, pursue a General Education Degree, complete parenting classes, or obtain employment. 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).

Evidence was competent to support termination of the mother's parental rights pursuant to G.S. 7B-1111(a)(2) where the finding indicated that the mother willfully left the children in foster care placement outside the home for more than 12 months without showing that reasonable progress had been made to correct those conditions which led to the removal of the children. In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005).

Finding of any one of the grounds enumerated in G.S. 7B-1111 was sufficient to terminate respondent's parental rights, and a trial court's conclusion of law which stated: "The father has willfully left the child in foster care for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the child" was a sufficient basis to terminate the father's parental rights. In re S.B.M., 173 N.C. App. 634, 619 S.E.2d 583 (2005).

Finding of any one of the grounds enumerated in G.S. 7B-1111 was sufficient to terminate respondent's parental rights, and a trial court's conclusion of law which stated: "The father has willfully left the child in foster care for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the child" was a sufficient basis to terminate the father's parental rights. In re S.B.M., 173 N.C. App. 634, 619 S.E.2d 583 (2005).

Department of Social Services failed to present clear, cogent, and convincing evidence that defendant willfully left the children in foster care for more than 12 months without making reasonable progress toward remedying the conditions that led to their removal where, inter alia, the Department never entered into a case plan against which the trial court could have measured the father's progress, the father attempted to remedy the issue of the children's failure to receive letters the father sent, and there was no evidence to support a finding that the father was ordered not to have contact with the children pursuant to a probation violation order. In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007).

There was sufficient evidence that a mother had willfully left a child in foster care for more than 12 months without showing reasonable progress under the circumstances in correcting those conditions that led to the removal of the child under G.S. 7B-1111(a)(2), even though the mother completed group anger management therapy, as she did not attend individual therapy as required by the trial court's order, and she had been convicted of communicating threats. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

Trial court correctly terminated a mother's parental rights on the ground of her willfully leaving the child in foster care for more than twelve months without showing reasonable progress, G.S. 7B-1111(a)(2), because the mother failed to participate in mental health treatment and was inconsistent in participating in therapy for the child, who had been sexually abused by a sibling. In re J.L.H., 224 N.C. App. 52, 741 S.E.2d 333 (2012).

In a private termination action where petitioners were also the custodians of the three children at issue, the mother's parental rights to the three children were properly terminated under G.S. 7B-1111(a)(2) because whether or not the mother was in a position to actually regain custody of the children at the time of the termination hearing was not a relevant consideration under G.S. 7B-1111(a)(2); rather, the court only had to determine whether the mother had made reasonable progress under the circumstances in correcting those conditions which led to the children's removal. In re L.C.R., 226 N.C. App. 249, 739 S.E.2d 596 (2013).

Trial court's unchallenged findings, which were deemed to be supported by sufficient evidence and were binding on appeal, supported its adjudication that the mother willfully left her children in foster care for more than twelve months without making reasonable progress to correct the conditions leading to their placements. In re H.D., 239 N.C. App. 318, 768 S.E.2d 860 (2015).

Parental rights were terminated because a trial court found that a parent willfully left the parent's children in foster care for twelve months without showing that reasonable progress was made in alleviating the conditions that brought the children into the custody of a county department of social services. The parent engaged in a pattern of self-defeating cycles of dishonesty, engaged in a pattern of violence with paramours, family members, and caretakers to the children, and attempted to conceal unfavorable information from the court. 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).

Trial court properly terminated a father's parental rights to his child because it took the father nearly a year after his initial participation in the case to obtain independent housing, and even then, his housing was not appropriate for the child, the father used an alias to sign his lease and did not know who would be living in his residence, without the name of a roommate, the Department of Social Services had no way to verify whether the residence would provide a safe environment for the child, and the father's completion of parenting classes amounted to nothing more than limited progress and did not rebut his failure to obtain adequate housing. In re J.A.K., 258 N.C. App. 262, 812 S.E.2d 716 (2018).

Trial court's findings fully supported its conclusion that grounds exist to terminate the mother's parental rights as she willfully left the child in foster care for more than 12 months without making reasonable progress to correct the conditions that led to her removal; the mother failed to participate in court-ordered visitation, to verifiably participate in substance abuse assessment or drug screenings, or to maintain housing and employment stability. In re C.J., 373 N.C. 260, 837 S.E.2d 859 (2020).

Trial court did not err in terminating the mother's parental rights for willfully leaving her children in foster care or a placement outside of the home for more than 12 months without making reasonable progress to correct the conditions that led to their removal because she failed to comply with the components of her case plan addressing her parenting and mental health concerns; and, while she addressed the housing component of her case plan by moving from a motel room into a house, she did so only a month before the termination hearing, which did not amount to reasonable progress in light of the fact that the children had been in the custody of the Youth and Family Services Division for over three years. In re E.C., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of the mother's parental rights on the ground that she willfully failed to make reasonable progress to correct the conditions that led to the children's removal from her care was proper as she had continued to test positive for drugs and had refused to comply with requested drug screens; and she never completed the domestic violence counseling ordered, and continued to relate and reside with the father whom she claimed set her on fire in front of the children. In re S.M., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Mother argued that she made reasonable progress, pointing to her participation in a program for people transitioning out of foster care, but her participation in that program alone was not sufficient to prevent or negate the conclusion that she failed to make reasonable progress. In re Q.P.W., - N.C. - , - S.E.2d - (Mar. 12, 2021).

Trial court properly found that grounds existed to terminate the mother's parental rights; she willfully left the child in foster care as she had the ability to make reasonable progress but was unwilling to make an effort. Case plan requirements were tied to alleviating the conditions that contributed to the child's removal, namely the mother's immaturity and instability, yet she failed to maintain housing, attend parenting classes, cooperate with drug screens, and attend visits with the child. In re Q.P.W., - N.C. - , - S.E.2d - (Mar. 12, 2021).

Termination of mother's parental rights was appropriate as the mother willfully left the mother's children in foster care or placement outside the home for more than 12 months without making reasonable progress toward correcting the substance abuse and domestic violence issues which led to the removal of the children. The court detailed the mother's positive tests for marijuana, failure to complete substance abuse treatment and domestic violence counseling programs, and repeated acts of domestic violence involving consumption of alcohol. In re A.M., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Time Period for Reasonable Progress. - The 12-month standard in former G.S. 7A-289.32(3) for determining whether a parent has made reasonable progress in correcting the conditions that led to the removal of the parent's child refers to the 12-month period prior to the filing of the petition to terminate parental rights. In re Pierce, 356 N.C. 68, 565 S.E.2d 81 (2002).

Where the trial court relied upon the incorrect standard when it found that grounds existed to terminate the mother's parental rights under G.S. 7B-1111(a)(2), a provision that provided that termination could occur if the mother willfully left the children in foster care or placement outside them home for more than 12 months without making reasonable progress in 12 months, the error was harmless, as grounds also existed for termination for neglect under G.S. 7B-1111(a)(1) and for willful abandonment under G.S. 7B-1111(a)(7). In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760 (2006).

Petition Failed to Allege Parent's Failure to Show Reasonable Progress. - It was improper to terminate a father's parental rights for leaving the children in foster care for 12 months without reasonable progress to alleviate the conditions leading to the children's removal because the petition alleged no such ground, so the father had no notice of the allegation. In re L.S., 262 N.C. App. 565, 822 S.E.2d 506 (2018).

Diligence of DSS. - While the affidavit of the Department of Social Services (DSS) for service by publication under former G.S. 7A-289.27 may evidence the "due diligence" necessary for service under that statute, DSS's "due diligence" in serving its petition did not determine whether it made "diligent efforts" to encourage and counsel family relationships for two consecutive years (now 12 months) prior to termination under subdivision (3) of this section. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

Department of Social Service's lone attempt merely to contact incarcerated father hardly approached the requisite diligent efforts to strengthen family ties. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

Court's findings of fact did not support a determination that the mother willfully left the child in foster care or a placement outside the home without showing reasonable progress had been made in correcting the conditions that had led to the child's removal; the State failed to prove that the children would probably experience future neglect if they were returned to the mother's care. In re D.A.A.R., - N.C. - , - S.E.2d - (Apr. 23, 2021).

Showing of Fault Not Required. - A finding of willfulness under this section does not require a showing of fault on the part of the parent; willfulness may be found where the parent, recognizing her inability to care for the child, voluntarily leaves the child in foster care; therefore, where respondent had been afforded almost double the statutory 18-month period in which to demonstrate her willingness to correct the conditions which led to the removal of her children, her failure to do so supported a finding of willfulness regardless of her good intentions. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676 (1989).

A finding of willfulness does not require a showing of fault by the parent. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996).

Effect of Counsel's Advice upon Issue of Willfulness. - Where counsel's testimony at respondent/mother's termination hearing affirmed her desire to obtain custody of her children, such testimony negated any prejudicial effect counsel's prior recommendation to mother to leave her children in foster care may have had on the issue of her willfulness in the matter. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676 (1989).

Effort to Regain Custody. - A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children. In re Nolen, 117 N.C. App. 693, 453 S.E.2d 220 (1995).

Leaving Held "Willful" - Evidence that although he was apparently not incarcerated during the entire two-year period being considered, father of one child never attempted to contact Department of Social Services (DSS) or child during that period, and that father of the other child had been incarcerated throughout the period, and similarly never contacted DSS, but did call his child once at her foster home, demonstrated that respondents' leaving their children in foster care was "willful." In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

Where the record showed that although respondent initially participated in programs designed to improve her situation, she had largely abandoned these efforts, she had not followed through on her program of vocational training, and when the petition in the case was filed, respondent had been traveling, her visitation with the children had been infrequent, and her social worker had difficulty in contacting her, the evidence supported a finding of willfulness under this section. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676 (1989).

Where respondent entered several service agreements with DSS since her children were removed yet did not enroll in and complete the Step One program; attended substance abuse counseling only sporadically; did not attend AA meetings regularly; did not complete parenting classes; did not abstain from the use of alcohol; failed to keep DSS informed of where she was living so that DSS could contact her about the children; showed up for visits smelling of alcohol and appearing intoxicated; numerous police officers responded to disturbance calls at respondent's residence; and respondent had more than three and one-half times the statutory period of twelve months in which to take steps to improve her situation, respondent's behavior supported a finding of willfulness. In re Nolen, 117 N.C. App. 693, 453 S.E.2d 220 (1995).

Even though respondent attempted to regain custody of her child, willfulness could still be found under former G.S. 7A-289.32(3) because the child was left in foster care for over twelve months and respondent did not show reasonable progress or a positive response toward the diligent efforts of the Department of Social Services. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996).

Evidence clearly and convincingly established that mentally ill mother willfully left her child in foster care for more than 12 months without showing reasonable progress to correct the conditions which led to the child's placement when she was unwilling to accept any responsibility for her situation and would not appropriately interact with her child. In re Fletcher, 148 N.C. App. 228, 558 S.E.2d 498 (2002).

There was clear, cogent, and convincing evidence to hold that a mother was willful in leaving her children in the custody of the Forsyth County Department of Social Services (DSS) for a time period well beyond the statutory period of 12 months where: (1) she entered a mental hospital, which caused the initial removal of her children, and she did not seek return of their custody for several year, (2) she refused to acknowledge and treat the very conditions that led to her loss of custody and even refused to acknowledge the medical diagnosis of her children; (3) this behavior indicted that, if returned to her custody, she would not pursue treatment for herself or her children; and (4) any attempt to set up a visitation with the children by the diligence of DSS or the children's guardian ad litem was frustrated at the mother's own behest. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004).

Termination of parental rights of a mother and father were upheld on appeal, pursuant to G.S. 7B-1111, where the evidence showed that the parents were neglectful in leaving the child for over 12 months in foster care, failing to make any progress toward unification, and engaging in sexual abuse with the child. In re B.D., 174 N.C. App. 234, 620 S.E.2d 913 (2005), cert. denied, - N.C. - , 628 S.E.2d 245 (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).

Evidence supported termination of the father's parental rights; although he did visit with the child seven times, that alone was not dispositive of the trial court's conclusion that, by making almost no efforts to have the child placed in his custody, he willfully left the child in the custody of Youth and Family Services for more than 12 months. In re A.W, 237 N.C. App. 209, 765 S.E.2d 111 (2014).

Evidence supported the finding that the mother acted willfully in failing to make reasonable progress toward correcting the conditions that led to the children's removal from her home, making termination proper; the mother refused to work with the in-home aide provided by the department and she was afforded almost three years to achieve a home environment suitable for her children, plus the trial court had duly considered the mother's partial completion of her case plan as well as her limited cognitive abilities. In re J.S., 374 N.C. 811, 845 S.E.2d 66 (2020).

Willful Leaving Not Shown. - Clear, cogent and convincing evidence did not show that the mother had willfully left her child in foster care without making reasonable progress toward resolving the problems which led to the child's foster care placement, in violation of G.S. 7B-1111(a)(2). In re Nesbitt, 147 N.C. App. 349, 555 S.E.2d 659 (2001).

Evidence did not clearly and convincingly show father willfully left his child in foster care, under G.S. 7B-1111(a)(2), where he attended visits with the child, completed psychological evaluations and treatment, completed parenting classes and maintained contact with the Department of Social Services. In re Fletcher, 148 N.C. App. 228, 558 S.E.2d 498 (2002).

Where none of the court's findings touched directly on the mother's ability to provide her child with proper care, supervision and discipline, and the findings did not support the conclusion that the mother failed to make reasonable progress in correcting the conditions that led to the child's removal, the court erred in finding the mother willfully left the child in foster care for 12 months. In re J.T.W., 178 N.C. App. 678, 632 S.E.2d 237 (2006), rev'd, 361 N.C. 341, 643 S.E.2d 579 (2007).

Because the children were not removed from the mother more than twelve months prior to the termination hearing, termination of the mother's parental rights on the basis that she left the children in foster care of placement outside the home was not supported by the evidence. In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015).

Findings of fact were inadequate under G.S. 7B-1111(a)(2) where, at best, they showed that the child was placed with the mother's cousin and his wife because the mother was going to take the child and move in with the child's father and that the parents had acted inconsistently with their rights as parents, but they did not identify the conditions that resulted in the involuntary removal of the child from the mother. Moreover, it was unclear from the findings of fact that the mother was aware of the conditions or that she had the ability to correct the conditions, whatever they may have been. In re N.G.H., 252 N.C. App. 426, 837 S.E.2d 724 (2017).

Failure to Adequately Consider Mother's Age. - In a termination of parental rights action, the trial court failed to adequately address the mother's age, in terms of whether the mother willfully left the child in foster care for 12-months prior to the filing of the petition. The mother's living in the same foster home as the child did not necessarily constitute willfully leaving the child in foster care. In re J.G.B., 177 N.C. App. 375, 628 S.E.2d 450 (2006).

Child Adjudicated Dependent. - 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).

Evidence Sufficient. - 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).

VII. FAILURE TO ESTABLISH PATERNITY, LEGITIMATE CHILD, OR PROVIDE SUPPORT OR CARE.

.

What Must Be Proven Under Former G.S. 7A-289.32(6). - The language of former G.S. 7A-289.32(6) dictates that the Department of Social Services must prove that respondents failed to take, not one, but any of the four actions listed in paragraphs a to d thereof. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

Former G.S. 7A-289.32(6)(d) does not require a finding that the putative father had the means and ability to pay child support, it only requires a showing that he in fact did not provide substantial support or consistent care to the child or the mother. In re Hunt, 127 N.C. App. 370, 489 S.E.2d 428 (1997).

Knowledge of Child's Existence on Part of Father at Time of Filing Petition. - G.S. 48-6(a)(3) reflects the same legislative choices evident in the termination of a putative father's rights under former G.S. 7A-289.32(6); under neither statute is the illegitimate child's future welfare dependent on whether or not the putative father knows of the child's existence at the time the petition is filed. In re Clark, 95 N.C. App. 1, 381 S.E.2d 835 (1989), rev'd on other grounds, 327 N.C. 61, 393 S.E.2d 791 (1990).

Lack of Paternity or Legitimacy Must Be Proved as of Filing Date. - The only logical construction of former G.S. 7A-289.32(6) is that the Department of Social Services carries the burden of proving the lack of paternity or legitimacy as of the petition's filing date. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

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).

Dependency. - In dismissing a guardian ad litem's termination of parental rights case against a father, the trial court did not err in concluding that termination was not appropriate on dependency grounds, pursuant to G.S. 7B-1111(a)(6) where, although the father was incarcerated, the guardian ad litem failed to present any evidence that the father's incapability of providing care and supervision was due to one of the specified conditions or any other similar cause or condition. In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012).

Mother's parental rights were improperly terminated on the ground of dependency - when the trial court determined that the mother was incapable of providing a safe, permanent home for the mother's child - because the mother divorced the abusive father, confronted the mother's own history of violent domestic relationships to the satisfaction of treatment providers, displayed appropriate parenting techniques during visits with the child, and obtained a suitable residence with ready access to transportation and social support. In re K.L.T., 374 N.C. 826, 845 S.E.2d 28 (2020).

A county attorney's allegation of the respondents' "putative" fatherhood in the Department of Social Services' affidavit for publication was not clear, cogent and convincing evidence that respondents failed to comply with subdivision (6) of this section. In re Harris, 87 N.C. App. 179, 360 S.E.2d 485 (1987).

Personal Jurisdiction. - Personal jurisdiction did not require minimum contacts with the State in a petition to terminate the parental rights of a nonresident father of a child born out of wedlock who failed to establish paternity, legitimate his child, or provide substantial financial support or care to the child and mother. In re Baby Boy Dixon, 112 N.C. App. 248, 435 S.E.2d 352 (1993).

Termination Appropriate. - Where father failed to legitimate his child by judicial process, affidavit or marriage and he provided his child with less than $1000 over a three year period, the trial court did not err in terminating his parental rights. In re Hunt, 127 N.C. App. 370, 489 S.E.2d 428 (1997).

Because a trial court improperly interpreted a stipulation regarding legitimacy under G.S. 49-10, it erroneously found that the four factors in G.S. 7B-1111(a)(5) were satisfied; because there was insufficient evidence on the elements outside of the stipulation, a reversal was required. In re I.S., 170 N.C. App. 78, 611 S.E.2d 467 (2005).

Denial of an adoption agency's petition for the termination of a father's parental rights was reversed as the trial court did not find that the father, before the petition was filed, established paternity judicially, legitimated the child either through judicial process or marriage to the mother, or provided the mother with substantial financial support or consistent care. A Child's Hope, LLC v. Doe, 178 N.C. App. 96, 630 S.E.2d 673 (2006).

Although the biological father argued that the trial court abused its discretion in concluding it was in the best interest of the minor child to terminate the biological father's parental rights because the biological father's mother was willing to take custody of the minor child and it was unclear whether the minor child's foster parent would be able to adopt the minor child, the court found that nothing within G.S. 7B-1110 required that termination lead to adoption in order for termination to be in a child's best interests, and the biological father had not taken any actions in G.S. 7B-1111(a)(5) exhibiting a parental interest in the minor child, which provided grounds for termination of his parental rights. In re M.M., 200 N.C. App. 248, 684 S.E.2d 463 (2009).

Parental rights of a father, who had not acknowledged paternity, were properly terminated because he failed to take any of the required statutory actions under G.S. 7B-1111(a)(5). 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).

Teenage father's parental rights to his child were properly terminated for nonsupport under G.S. 7B-1111(a)(5) based on his failure to provide consistent care and support to the teenage mother during her pregnancy. Buying baby clothes, a few phone calls, and attending a few parenting classes and an ultrasound were insufficient care. In re A.C.V., 203 N.C. App. 473, 692 S.E.2d 158 (2010).

Termination Not Appropriate. - Trial court properly concluded that a father's parental rights as to his minor daughter could not be terminated based on G.S. 7B-1111(a)(5) where the father was identified as the child's father on an amended birth certificate, and the petitioner failed to rebut the presumption that the father had established paternity judicially. In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012).

Trial court properly concluded that a father's parental rights as to his minor son could not be terminated based on G.S. 7B-1111(a)(5) where the father testified that he took a DNA test and was found to be the child's father, the county entered a child support order for the child, and the father was identified as the child's father on an amended birth certificate. In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012).

No evidence supported terminating a father's parental rights for failure to legitimate the children because no evidence was adduced showing (1) the children were born out of wedlock or, (2) when the petition was filed, the father did not file a paternity affidavit or petition to legitimate the children, legitimate the children by marrying the children's mother, or establish paternity in court, and (3) a proffer that the father did not pay support or provide gifts or clothes since the children were in foster care did not suffice. In re L.S., 262 N.C. App. 565, 822 S.E.2d 506 (2018).

VIII. FAILURE TO PAY SUPPORT REQUIRED BY DECREE OR AGREEMENT.

.

Proof Required Under Subdivision (5). - In a termination action under former G.S. 7A-289.32(5), based upon respondent's willful failure without justification to provide support, petitioner must prove the existence of a support order that was enforceable during the year before the termination petition was filed; consequently, because a proper decree for child support will be based on the supporting parent's ability to pay as well as the child's needs, there is no requirement that petitioner independently prove or that the termination order find as fact respondent's ability to pay support during the relevant statutory time period. In re Roberson, 97 N.C. App. 277, 387 S.E.2d 668 (1990).

Ability to Pay Shown. - Evidence was sufficient to show that father had the ability to pay some support during the six-month period preceding the filing of termination petition, despite his incarceration and his alleged medical disability. In re Becker, 111 N.C. App. 85, 431 S.E.2d 820 (1993).

Willful Failure to Pay Not Shown. - Where the trial court found that father had a serious drinking problem that impaired his ability to pay child support, and the court based its conclusion that father chose not to pay child support on its findings that father had decided to remain sober and commit himself to a business endeavor as the court reasoned he could have applied the same effort he applied to the business project to paying child support, these findings did not support a conclusion that respondent willfully failed to pay child support. Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).

Evidence of Inability to Pay. - In an action to terminate parental rights, a parent may present evidence to prove he was unable to pay child support in order to rebut a finding of willful failure to pay under former G.S. 7A-289.32(5). Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).

Insufficient Notice. - Termination of the father's parental rights was improper because the petition was insufficient to put him on notice that his parental rights were subject to termination based on the willful failure to pay child support. In re I.R.L., 263 N.C. App. 481, 823 S.E.2d 902 (2019).


§ 7B-1112. Effects of termination order.

An order terminating the parental rights completely and permanently terminates all rights and obligations of the parent to the juvenile and of the juvenile to the parent arising from the parental relationship, except that the juvenile's right of inheritance from the juvenile's parent shall not terminate until a final order of adoption is issued. The parent is not thereafter entitled to notice of proceedings to adopt the juvenile and may not object thereto or otherwise participate therein:

  1. If the juvenile had been placed in the custody of or released for adoption by one parent to a county department of social services or licensed child-placing agency and is in the custody of the agency at the time of the filing of the petition or motion, including a petition or motion filed pursuant to G.S. 7B-1103(a)(6), that agency shall, upon entry of the order terminating parental rights, acquire all of the rights for placement of the juvenile, except as otherwise provided in G.S. 7B-908(d), as the agency would have acquired had the parent whose rights are terminated released the juvenile to that agency pursuant to the provisions of Part 7 of Article 3 of Chapter 48 of the General Statutes, including the right to consent to the adoption of the juvenile.
  2. Except as provided in subdivision (1) above, upon entering an order terminating the parental rights of one or both parents, the court may place the juvenile in the custody of the petitioner or movant, or some other suitable person, or in the custody of the department of social services or licensed child-placing agency, as may appear to be in the best interests of the juvenile.

History

(1977, c. 879, s. 8; 1983, c. 870, s. 3; 1995, c. 457, s. 5; 1998-202, s. 6; 1998-229, s. 11; 1999-456, s. 60; 2000-183, s. 12; 2011-295, s. 17; 2012-194, s. 2.)

Editor's Note. - This section was originally enacted as G.S. 7B-1111. It has been renumbered as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-295, s. 17, effective October 1, 2011, and applicable to actions filed or pending on or after that date, inserted "except as otherwise provided in G.S. 7B-908(d)" near the middle of subdivision (1).

Session Laws 2012-194, s. 2, effective July 17, 2012, substituted "G.S. 7B-1103(a)(6)" for "G.S. 7B-1103(6)" in subdivision (1).

Legal Periodicals. - For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

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 article, "Coercive Governmental Intervention and the Family: A Comment on North Carolina's Proposed Standards," see 7 Campbell L. Rev. 145 (1984).

For 1984 survey, "Termination of Parental Rights: Putting Love in Its Place," see 63 N.C.L. Rev. 1177 (1985).

For comment, "Termination of Parental Rights," see 21 Wake Forest L. Rev. 431 (1986).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

No Standing to Bring Legitimation Action After Termination of Parental Rights. - Where father's parental rights had been terminated under G.S. 7B-1112 in 1999, he lacked standing to bring an action under G.S. 49-10, G.S. 49-11 to legitimate the same child to whom his parental rights had been terminated. Gorsuch v. Dees, 173 N.C. App. 223, 618 S.E.2d 747 (2005).

When a mother sued the adoptive parents of the mother's children to, inter alia, revoke the mother's consent to the adoption, res judicata barred this claim because (1) the parties in this action were the same as the parties in the adoptive parents' adoption action, (2) the two actions were the same, for res judicata purposes, because the mother sought to revoke the consent, based on a claim of fraud in the procurement, in both, and alleged, in both, that the mother was subject to duress when the mother signed the consent due to the adoptive parents' relationship to the mother's boyfriend, and (3) the order terminating the mother's parental rights, entered in a Florida court, was a final order, for res judicata purposes, under Fla. Stat. Ann. § 39.811 and G.S. 7B-1112. Quets v. Needham, 198 N.C. App. 241, 682 S.E.2d 214 (2009).

Subsection (1) of former G.S. 7A-289.33 (see now G.S. 7B-1112) is an exception to the general grant of standing to seek custody under G.S. 50-13.1(a). Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).

Subsection (1) of former G.S. 7A-289.33 (see now G.S. 7B-1112) is a narrow statute, intended to apply only to situations where the County Department of Social Services has custody and the parents' rights are later terminated. Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).

Constitutionally Protected Interest in Children Lost by Termination. - After respondents' parental rights were permanently terminated, they no longer had any constitutionally protected interest in their four minor children. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985).

No Standing to Seek Custody Following Termination of Rights. - 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).

Rights of Department of Social Services. - Upon entry of an order terminating parental rights, the County Department of Social Services acquires the same rights that it would have acquired if the parent had consented to the adoption of that child under G.S. 48-9(a)(1). Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).

Trial court lacked jurisdiction to place a child with her maternal grandmother because the child was in the custody of the Department of Social Services (DSS) when the parental rights of the mother and father were terminated; therefore, legal and physical custody of the child vested in DSS upon the termination, and when custody vested in DSS, it was authorized to proceed in its discretion with placing the child. In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008), review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).

Foster Parents. - In plaintiffs' action to obtain custody of a child placed in their home pursuant to a foster parent agreement, Court of Appeals erred in relying on this section as the controlling statute, since this section sets forth the effects of a court order terminating the parental rights of a natural parent on the grounds of abuse or neglect of a minor child, and such a court order was not involved, as the natural parents of the child had voluntarily released their parental rights and surrendered the child to defendant for adoptive placement; rather, the action was governed by G.S. 48-9.1. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981).

Applied in In re Estate of Lunsford, 160 N.C. App. 125, 585 S.E.2d 245 (2003); In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re B.S.O., 225 N.C. App. 541, 740 S.E.2d 483 (2013).


§ 7B-1112.1. Selection of adoptive parents.

The process of selection of specific adoptive parents shall be the responsibility of and within the discretion of the county department of social services or licensed child-placing agency. In selecting the adoptive parents, any current placement provider wanting to adopt the child shall be considered. The guardian ad litem may request information from and consult with the county department or child-placing agency concerning the selection process. If the guardian ad litem requests information about the selection process, the county shall provide the information within five business days. The county department of social services shall notify the guardian ad litem and the foster parents of the selection of prospective adoptive parents within 10 days of the selection and before the filing of the adoption petition. If the guardian ad litem disagrees with the selection of adoptive parents or the foster parents want to adopt the juvenile and were not selected as adoptive parents, the guardian ad litem or foster parents shall file a motion within 10 days of the department's notification and schedule the case for hearing on the next juvenile calendar. The department shall not change the juvenile's placement to the prospective adoptive parents unless the time period for filing a motion has expired and no motion has been filed. The Department shall provide a copy of a motion for judicial review of adoption selection to the foster parents not selected. Nothing in this section shall be construed to make the foster parents a party to the proceeding solely based on receiving notification and the right to be heard by filing a motion. In hearing any motion, the court shall consider the recommendations of the agency and the guardian ad litem and other facts related to the selection of adoptive parents. The court shall then determine whether the proposed adoptive placement is in the juvenile's best interests.

History

(2011-295, s. 18; 2013-129, s. 36.)

Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to this section by Session Laws 2013-129, s. 36, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2013-129, s. 36, effective October 1, 2013, added the second, eighth and ninth sentences, in the fifth sentence, inserted "and the foster parents," in the sixth sentence, inserted "or the foster parents want to adopt the juvenile and were not selected as adoptive parents" and "or foster parents," and, in the tenth sentence, substituted "any motion" for "the motion." For applicability, see editor's note.

§ 7B-1113: Repealed by Session Laws 2005-398, s. 18, effective October 1, 2005.

Editor's Note. - Session Laws 2005-398, s. 19, made the repeal of G.S. 7B-1113, effective October 1, 2005, and applicable to petitions or actions filed on or after that date.

§ 7B-1114. Reinstatement of parental rights.

  1. A juvenile whose parent's rights have been terminated, the guardian ad litem attorney, or a county department of social services with custody of the juvenile may file a motion to reinstate the parent's rights if all of the following conditions are satisfied:
    1. The juvenile is at least 12 years of age or, if the juvenile is younger than 12, the motion alleges extraordinary circumstances requiring consideration of the motion.
    2. The juvenile does not have a legal parent, is not in an adoptive placement, and is not likely to be adopted within a reasonable period of time.
    3. The order terminating parental rights was entered at least three years before the filing of the motion, unless the court has found or the juvenile's attorney advocate and the county department of social services with custody of the juvenile stipulate that the juvenile's permanent plan is no longer adoption.
  2. If a motion could be filed under subsection (a) of this section and the parent whose rights have been terminated contacts the county department of social services with custody of the juvenile or the juvenile's guardian ad litem regarding reinstatement of the parent's rights, the department or the guardian ad litem shall notify the juvenile that the juvenile has a right to file a motion for reinstatement of parental rights.
  3. If a motion to reinstate parental rights is filed and the juvenile does not have a guardian ad litem appointed pursuant to G.S. 7B-601, the court shall appoint a guardian ad litem to represent the best interests of the juvenile. The appointment, duties, and payment of the guardian ad litem and the guardian ad litem attorney shall be the same as in G.S. 7B-601 and G.S. 7B-603.
  4. The party filing a motion to reinstate parental rights shall serve the motion on each of the following who is not the movant:
    1. The juvenile.
    2. The juvenile's guardian ad litem or the guardian ad litem attorney.
    3. The county department of social services with custody of the juvenile.
    4. The former parent whose rights the motion seeks to have reinstated.
  5. The movant shall ask the clerk to calendar the case for a preliminary hearing on the motion for reinstatement of parental rights within 60 days of the filing of the motion at a session of court scheduled for the hearing of juvenile matters. The movant shall give at least 15 days' notice of the hearing and state its purpose to the persons listed in subdivisions (d)(1) through (d)(4) of this section. In addition, the movant shall send a notice of the hearing to the juvenile's placement provider. Nothing in this section shall be construed to make the former parent or the juvenile's placement provider a party to the proceeding based solely on being served with the motion or receiving notice and the right to be heard.
  6. At least seven days before the preliminary hearing, the department of social services and the juvenile's guardian ad litem shall provide to the court, the other parties, and the former parent reports that address the factors specified in subsection (g) of this section.
  7. At the preliminary hearing and any subsequent hearing on the motion, the court shall consider information from the county department of social services with custody of the juvenile, the juvenile, the juvenile's guardian ad litem, the juvenile's former parent whose parental rights are the subject of the motion, the juvenile's placement provider, and any other person or agency that may aid the court in its review. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and whether reinstatement is in the juvenile's best interest. The court shall consider the following criteria and make written findings regarding the following that are relevant:
    1. What efforts were made to achieve adoption or a permanent guardianship.
    2. Whether the parent whose rights the motion seeks to have reinstated has remedied the conditions that led to the juvenile's removal and termination of the parent's rights.
    3. Whether the juvenile would receive proper care and supervision in a safe home if placed with the parent.
    4. The age and maturity of the child and the ability of the child to express the child's preference.
    5. The parent's willingness to resume contact with the juvenile and to have parental rights reinstated.
    6. The juvenile's willingness to resume contact with the parent and to have parental rights reinstated.
    7. Services that would be needed by the juvenile and the parent if the parent's rights were reinstated.
    8. Any other criteria the court deems necessary.
  8. At the conclusion of the preliminary hearing, the court shall either dismiss the motion or order that the juvenile's permanent plan become reinstatement of parental rights. If the court does not dismiss the motion, the court shall conduct interim hearings at least every six months until the motion is granted or dismissed. Interim hearings may be combined with posttermination of parental rights review hearings required by G.S. 7B-908. At each interim hearing, the court shall assess whether the plan of reinstatement of parental rights continues to be in the juvenile's best interest and whether the department of social services has made reasonable efforts to achieve the permanent plan.
  9. At any hearing under this section, after making proper findings of fact and conclusions of law, the court may do one of the following:
    1. Enter an order for visitation in accordance with G.S. 7B-905.1.
    2. Order that the juvenile be placed in the former parent's home and supervised by the department of social services either directly or, when the former parent lives in a different county, through coordination with the county department of social services in that county, or by other personnel as may be available to the court, subject to conditions applicable to the former parent as the court may specify. Any order authorizing placement with the former parent shall specify that the juvenile's placement and care remain the responsibility of the county department of social services with custody of the juvenile and that the department is to provide or arrange for the placement of the juvenile.
  10. The court shall either dismiss or grant a motion for reinstatement of parental rights within 12 months from the date the motion was filed, unless the court makes written findings why a final determination cannot be made within that time. If the court makes such findings, the court shall specify the time frame in which a final order shall be entered.
  11. An order reinstating parental rights restores all rights, powers, privileges, immunities, duties, and obligations of the parent as to the juvenile, including those relating to custody, control, and support of the juvenile. If a parent's rights are reinstated, the court shall be relieved of the duty to conduct periodic reviews.
  12. An order shall be entered no later than 30 days following the completion of any hearing pursuant to this section. 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.
  13. The granting of a motion for reinstatement of parental rights does not vacate or otherwise affect the validity of the original order terminating parental rights.
  14. A parent whose rights are reinstated pursuant to this section is not liable for child support or the costs of any services provided to the juvenile for the period from the date of the order terminating the parent's rights to the date of the order reinstating the parent's rights.

A former parent who is served under this subsection is not a party to the proceeding and is not entitled to appointed counsel but may retain counsel at the former parent's own expense.

History

(2011-295, s. 18; 2013-129, s. 37.)

Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to subsections (a) and (i) by Session Laws 2013-129, s. 37, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2013-129, s. 37, effective October 1, 2013, deleted "pursuant to this Article" following "terminated" in subsection (a); and substituted "G.S. 7B-905.1" for "G.S. 7B-905(c)" in subdivision (i)(1). For applicability, see editor's note.

ARTICLE 12. Guardian Ad Litem Program.

Sec.

§ 7B-1200. Office of Guardian ad Litem Services established.

There is established within the Administrative Office of the Courts an Office of Guardian ad Litem Services to provide services in accordance with G.S. 7B-601 to abused, neglected, or dependent juveniles involved in judicial proceedings and to assure that all participants in these proceedings are adequately trained to carry out their responsibilities. Each local program shall consist of volunteer guardians ad litem, at least one program attorney, a program coordinator who is a paid State employee, and any clerical staff as the Administrative Office of the Courts in consultation with the local program deems necessary. The Administrative Office of the Courts shall adopt rules and regulations necessary and appropriate for the administration of the program.

History

(1983, c. 761, s. 160; 1987 (Reg. Sess., 1988), c. 1037, s. 32; c. 1090, s. 7; 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Legal Periodicals. - For article, "A Comparison of Child Advocacy Laws in Abuse and Neglect Cases in England the United States," see 31 N.C. Cent. L. Rev. 3331 N.C. Cent. L. Rev. 33 (2008).

CASE NOTES

Cited in In re J.H.K., 365 N.C. 171, 711 S.E.2d 118 (2011).


§ 7B-1201. Implementation and administration.

  1. Local Programs. - The Administrative Office of the Courts shall, in cooperation with each chief district court judge and other personnel in the district, implement and administer the program mandated by this Article. Where a local program has not yet been established in accordance with this Article, the district court district shall operate a guardian ad litem program approved by the Administrative Office of the Courts.
  2. Advisory Committee Established. - The Director of the Administrative Office of the Courts shall appoint a Guardian ad Litem Advisory Committee consisting of at least five members to advise the Office of Guardian ad Litem Services in matters related to this program. The members of the Advisory Committee shall receive the same per diem and reimbursement for travel expenses as members of State boards and commissions generally.

History

(1983, c. 761, s. 160; 1987 (Reg. Sess., 1988), c. 1037, s. 33; 1998-202, s. 6.)

§ 7B-1202. Conflict of interest or impracticality of implementation.

If a conflict of interest prohibits a local program from providing representation to an abused, neglected, or dependent juvenile, the court may appoint any member of the district bar to represent the juvenile. If the Administrative Office of the Courts determines that within a particular district court district the implementation of a local program is impractical, or that an alternative plan meets the conditions of G.S. 7B-1203, the Administrative Office of the Courts shall waive the establishment of the program within the district.

History

(1983, c. 761, s. 160; 1987 (Reg. Sess., 1988), c. 1037, s. 34; c. 1090, s. 8; 1998-202, s. 6.)

§ 7B-1203. Alternative plans.

A district court district shall be granted a waiver from the implementation of a local program if the Administrative Office of the Courts determines that the following conditions are met:

  1. An alternative plan has been developed to provide adequate guardian ad litem services for every juvenile consistent with the duties stated in G.S. 7B-601; and
  2. The proposed alternative plan will require no greater proportion of State funds than the district court district's abuse and neglect caseload represents to the State's abuse and neglect caseload. Computation of abuse and neglect caseloads shall include such factors as the juvenile population, number of substantiated abuse and neglect reports, number of abuse and neglect petitions, number of abused and neglected juveniles in care to be reviewed pursuant to G.S. 7B-906.1, nature of the district's district court caseload, and number of petitions to terminate parental rights.

When an alternative plan is approved pursuant to this section, the Administrative Office of the Courts shall retain authority to monitor implementation of the said plan in order to assure compliance with the requirements of this Article and G.S. 7B-601. In any district court district where the Administrative Office of the Courts determines that implementation of an alternative plan is not in compliance with the requirements of this section, the Administrative Office of the Courts may implement and administer a program authorized by this Article.

History

(1983, c. 761, s. 160; 1987 (Reg. Sess., 1988), c. 1037, s. 35; 1998-202, s. 6; 2013-129, s. 38.)

Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to subdivision (2) by Session Laws 2013-129, s. 38, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2013-129, s. 38, effective October 1, 2013, substituted "G.S. 7B-906.1" for "G.S. 7B-906" in subdivision (2). For applicability, see editor's note.

§ 7B-1204. Civil liability of volunteers.

Any volunteer participating in a judicial proceeding pursuant to the program authorized by this Article shall not be civilly liable for acts or omissions committed in connection with the proceeding if the volunteer acted in good faith and was not guilty of gross negligence.

History

(1983, c. 761, s. 160; 1998-202, s. 6.)

ARTICLE 13. Prevention of Abuse and Neglect.

Sec.

§ 7B-1300. Purpose.

It is the expressed intent of this Article to make the prevention of abuse and neglect, as defined in G.S. 7B-101, a priority of this State and to establish the Children's Trust Fund as a means to that end.

History

(1983, c. 894, s. 1; 1998-202, s. 6.)

Cross References. - As to establishment of School-Based Child and Family Team Initiative, see note under G.S. 143B-366.

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Legal Periodicals. - For article, "In Re R.R.N.: Redefining ‘Caretaker' for North Carolina Child Protective Services,” see 40 Campbell L. Rev. 265 (2018).

§ 7B-1301. Program on Prevention of Abuse and Neglect.

  1. The Department of Health and Human Services, through the Division of Social Services, shall implement the Program on Prevention of Abuse and Neglect. The Division of Social Services shall provide the staff and support services for implementing this program.
  2. In order to carry out the purposes of this Article:
    1. Repealed by Session Laws 2009-451, s. 10.43(b), effective July 1, 2009.
    2. The Division of Social Services shall review applications and contract with public or private nonprofit organizations, agencies, schools, or with qualified individuals to operate community-based educational and service programs designed to prevent the occurrence of abuse and neglect. Every contract entered into by the Division of Social Services shall contain provisions that at least twenty-five percent (25%) of the total funding required for a program be provided by the administering organization in the form of in-kind or other services and that a mechanism for evaluation of services provided under the contract be included in the services to be performed. In addition, every proposal to the Division of Social Services for funding under this Article shall include assurances that the proposal has been forwarded to the local department of social services for comment so that the Division of Social Services may consider coordination and duplication of effort on the local level.
    3. The  Division of Social Services shall develop appropriate guidelines and criteria for awarding contracts under this Article. These criteria shall include, but are not limited to: documentation of need within the proposed geographical impact area; diversity of geographical areas of programs funded under this Article; demonstrated effectiveness of the proposed strategy or program for preventing abuse and neglect; reasonableness of implementation plan for achieving stated objectives; utilization of community resources including volunteers; provision for an evaluation component that will provide outcome data; plan for dissemination of the program for implementation in other communities; and potential for future funding from private sources.
    4. The  Division of Social Services shall develop guidelines for regular monitoring of contracts awarded under this Article in order to maximize the investments in prevention programs by the Children's Trust Fund and to establish appropriate accountability measures for administration of contracts.
    5. The Division of Social Services shall develop a State plan for the prevention of abuse and neglect for submission to the Governor, the President of the Senate, and the Speaker of the House of Representatives.
  3. To assist in implementing this Article, the Division of Social Services may accept contributions, grants, or gifts in cash or otherwise from persons, associations, or corporations. All monies received by the Division of Social Services from contributions, grants, or gifts and not through appropriation by the General Assembly shall be deposited in the Children's Trust Fund. Disbursements of the funds shall be on the authorization of the Department of Health and Human Services. In order to maintain an effective expenditure and revenue control, the funds are subject in all respects to State law and regulations, but no appropriation is required to permit expenditure of the funds.
  4. Programs contracted for under this Article are intended to prevent abuse and neglect of juveniles. Abuse and neglect prevention programs are defined to be those programs and services which impact on juveniles and families before any substantiated incident of abuse or neglect has occurred. These programs may include, but are not limited to:
    1. Community-based educational programs on prenatal care, perinatal bonding, child development, basic child care, care of children with special needs, and coping with family stress; and
    2. Community-based programs relating to crisis care, aid to parents, and support groups for parents and their children experiencing stress within the family unit.
  5. No more than twenty percent (20%) of each year's total awards may be utilized for funding State-level programs to coordinate community-based programs.

History

(1983, c. 894, s. 1; 1993 (Reg. Sess., 1994), c. 677, s. 1; 1998-202, s. 6; 2009-451, s. 10.43(b).)

Editor's Note. - Session Laws 2004-124, s. 7.33(a) provides: "The Department of Public Instruction, in carrying out its duties and responsibilities under Article 13 of Chapter 7B of the General Statutes, shall collaborate with the Division of Social Services and with statewide child abuse and neglect prevention experts with regards to the following:

"(1) Best practices in child abuse and neglect prevention programs and policies.

"(2) Exploration of additional revenue sources for the protection of children in this State.

"(3) Educational programs to ensure statewide awareness of the Children's Trust Fund, and its purpose and mission."

Session Laws 2004-124, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2004'."

Session Laws 2004-124, s. 33.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2004-2005 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2004-2005 fiscal year."

Session Laws 2004-124, s. 33.5, contains a severability clause.

Session Laws 2009-451, s. 10.43(a), provides: "The Children's Trust Fund, a program on prevention of abuse and neglect, is transferred from the Department of Public Instruction to the Division of Social Services in the Department of Health and Human Services, as if by a Type I transfer as defined in G.S. 143A-6, with all the elements of such a transfer."

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5 is a severability clause.

Effect of Amendments. - Session Laws 2009-451, s. 10.43(b), effective July 1, 2009, in subsection (a), substituted "Department of Health and Human Services, through the Division of Social Services" for "State Board of Education, through the Department of Public Instruction" in the first sentence, and "Division of Social Services" for "Department of Public Instruction subject to the approval of the State Board of Education" in the second sentence; deleted former subdivision (b)(1), which read: "The Department of Public Instruction shall review applications and make recommendations to the State Board of Education concerning the awarding of contracts under this Article."; in subdivision (b)(2), substituted "Division of Social Services" for "State Board of Education" in the first and second sentences, in the first sentence, inserted "review applications and" and in the last sentence, substituted "Division of Social Services" for "Department of Public Instruction" twice, and deleted "as criteria in making recommendations to the State Board of Education" from the end; in subdivisions (b)(3) and (b)(4), substituted "Division of Social Services" for "State Board of Education with the assistance of the Department of Public Instruction"; in subdivision (b)(5), substituted "Division of Social Services" for "State Board of Education"; and, in subsection (c), substituted "Division of Social Services" for "State Board of Education" in the first and second sentences, and substituted "Department of Health and Human Services" for "State Board of Education or that Board's duly authorized representative" in the third sentence.

§ 7B-1302. Children's Trust Fund.

  1. There is established a fund to be known as the "Children's Trust Fund," in the Department of Health and Human Services, Division of Social Services, which shall be funded by a portion of the marriage license fee under G.S. 161-11.1 and a portion of the special license plate fee under G.S. 20-81.12. The money in the Fund shall be used by the Division of Social Services to fund abuse and neglect prevention programs so authorized by this Article.
  2. The Department of Health and Human Services shall report annually on revenues and expenditures of the Children's Trust Fund to the Joint Legislative Commission on Governmental Operations.

History

(1983, c. 894, s. 1; 1998-202, s. 6; 1999-277, s. 5; 2004-124, s. 7.33(b); 2009-451, s. 10.43(c); 2010-31, s. 10.20A(a).)

Cross References. - As to fees for Children's Trust Fund, see G.S. 161-11.1.

Editor's Note. - Session Laws 2004-124, s. 7.33(b), effective July 1, 2004, has been codified as subsection (b) of this section at the direction of the Revisor of Statutes.

Session Laws 2004-124, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2004'."

Session Laws 2004-124, s. 33.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2004-2005 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2004-2005 fiscal year."

Session Laws 2004-124, s. 33.5, contains a severability clause.

Session Laws 2009-451, s. 10.43(a), provides: "The Children's Trust Fund, a program on prevention of abuse and neglect, is transferred from the Department of Public Instruction to the Division of Social Services in the Department of Health and Human Services, as if by a Type I transfer as defined in G.S. 143A-6, with all the elements of such a transfer."

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5 is a severability clause.

Effect of Amendments. - Session Laws 2009-451, s. 10.43(c), effective July 1, 2009, in subsection (a), substituted "Division of Social Services" for "State Board of Education" in the second sentence; and, in subsection (b), substituted "Health and Human Services" for "Public Instruction" near the beginning.

Session Laws 2010-31, s. 10.20A(a), effective July 1, 2010, substituted "Department of Health and Human Services, Division of Social Services" for "Department of State Treasurer" in the first sentence of subsection (a).

ARTICLE 14. North Carolina Child Fatality Prevention System.

Sec.

§ 7B-1400. Declaration of public policy.

The General Assembly finds that it is the public policy of this State to prevent the abuse, neglect, and death of juveniles. The General Assembly further finds that the prevention of the abuse, neglect, and death of juveniles is a community responsibility; that professionals from disparate disciplines have responsibilities for children or juveniles and have expertise that can promote their safety and well-being; and that multidisciplinary reviews of the abuse, neglect, and death of juveniles can lead to a greater understanding of the causes and methods of preventing these deaths. It is, therefore, the intent of the General Assembly, through this Article, to establish a statewide multidisciplinary, multiagency child fatality prevention system consisting of the State Team established in G.S. 7B-1404 and the Local Teams established in G.S. 7B-1406. The purpose of the system is to assess the records of selected cases in which children are being served by child protective services and the records of all deaths of children in North Carolina from birth to age 18 in order to (i) develop a communitywide approach to the problem of child abuse and neglect, (ii) understand the causes of childhood deaths, (iii) identify any gaps or deficiencies that may exist in the delivery of services to children and their families by public agencies that are designed to prevent future child abuse, neglect, or death, and (iv) make and implement recommendations for changes to laws, rules, and policies that will support the safe and healthy development of our children and prevent future child abuse, neglect, and death.

History

(1991, c. 689, s. 233(a); 1993, c. 321, s. 285(a); 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

§ 7B-1401. Definitions.

The following definitions apply in this Article:

  1. Additional Child Fatality. - Any death of a child that did not result from suspected abuse or neglect and about which no report of abuse or neglect had been made to the county department of social services within the previous 12 months.
  2. Local Team. - A Community Child Protection Team or a Child Fatality Prevention Team.
  3. State Team. - The North Carolina Child Fatality Prevention Team.
  4. Task Force. - The North Carolina Child Fatality Task Force.
  5. Team Coordinator. - The Child Fatality Prevention Team Coordinator.

History

(1991, c. 689, s. 233(a); 1993, c. 321, s. 285(a); 1998-202, s. 6.)

§ 7B-1402. Task Force - creation; membership; vacancies.

  1. There is created the North Carolina Child Fatality Task Force within the Department of Health and Human Services for budgetary purposes only.
  2. The Task Force shall be composed of 36 members, 12 of whom shall be ex officio members, four of whom shall be appointed by the Governor, 10 of whom shall be appointed by the Speaker of the House of Representatives, and 10 of whom shall be appointed by the President Pro Tempore of the Senate. The ex officio members other than the Chief Medical Examiner may designate representatives from their particular departments, divisions, or offices to represent them on the Task Force. In making appointments or designating representatives, appointing authorities and ex officio members shall use best efforts to select members or representatives with sufficient knowledge and experience to effectively contribute to the issues examined by the Task Force and, to the extent possible, to reflect the geographical, political, gender, and racial diversity of this State. The members shall be as follows:
    1. The Chief Medical Examiner.
    2. The Attorney General.
    3. The Director of the Division of Social Services.
    4. The Director of the State Bureau of Investigation.
    5. The Director of the Maternal and Child Health Section of the Department of Health and Human Services.
    6. The chair of the Council for Women and Youth Involvement.
    7. The Superintendent of Public Instruction.
    8. The Chairman of the State Board of Education.
    9. The Director of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services.
    10. The Secretary of the Department of Health and Human Services.
    11. The Director of the Administrative Office of the Courts.
    12. The Director of the Juvenile Justice Section, Division of Adult Correction and Juvenile Justice, Department of Public Safety.
    13. A director of a county department of social services, appointed by the Governor upon recommendation of the President of the North Carolina Association of County Directors of Social Services.
    14. A representative from a Sudden Infant Death Syndrome or safe infant sleep counseling and education program, appointed by the Governor upon recommendation of the Director of the Maternal and Child Health Section of the Department of Health and Human Services.
    15. A representative from the NC Child, appointed by the Governor upon recommendation of the President of the organization.
    16. A director of a local department of health, appointed by the Governor upon the recommendation of the President of the North Carolina Association of Local Health Directors.
    17. A representative from a private group, other than NC Child, that advocates for children, appointed by the Speaker of the House of Representatives upon recommendation of private child advocacy organizations.
    18. A pediatrician, licensed to practice medicine in North Carolina, appointed by the Speaker of the House of Representatives upon recommendation of the North Carolina Pediatric Society.
    19. A representative from the North Carolina League of Municipalities, appointed by the Speaker of the House of Representatives upon recommendation of the League.
    20. A representative from the North Carolina Domestic Violence Commission, appointed by the Speaker of the House of Representatives upon recommendation of the Director of the Commission.
    21. One public member, appointed by the Speaker of the House of Representatives.
    22. A county or municipal law enforcement officer, appointed by the President Pro Tempore of the Senate upon recommendation of organizations that represent local law enforcement officers.
    23. A district attorney, appointed by the President Pro Tempore of the Senate upon recommendation of the President of the North Carolina Conference of District Attorneys.
    24. A representative from the North Carolina Association of County Commissioners, appointed by the President Pro Tempore of the Senate upon recommendation of the Association.
    25. A representative from the North Carolina Coalition Against Domestic Violence, appointed by the President Pro Tempore of the Senate upon recommendation of the Executive Director of the Coalition.
    26. One public member, appointed by the President Pro Tempore of the Senate.
    27. Five members of the Senate, appointed by the President Pro Tempore of the Senate, and five members of the House of Representatives, appointed by the Speaker of the House of Representatives.
  3. All members of the Task Force are voting members. Vacancies in the appointed membership shall be filled by the appointing officer who made the initial appointment. Terms shall be two years. The members shall elect a chair who shall preside for the duration of the chair's term as member. In the event a vacancy occurs in the chair before the expiration of the chair's term, the members shall elect an acting chair to serve for the remainder of the unexpired term.

History

(1991, c. 689, s. 233(a); 1991 (Reg. Sess., 1992), c. 900, s. 169(b); 1993, c. 321, s. 285(a); 1993 (Reg. Sess., 1994), c. 769, s. 27.8(d); 1996, 2nd Ex. Sess., c. 17, s. 3.2; 1997-443, s. 11A.98; 1997-456, s. 27; 1998-202, s. 6; 1998-212, s. 12.44(a), (b); 2004-186, s. 5.1; 2016-94, s. 32.5(h); 2020-78, s. 4F.1(a).)

Editor's Note. - Session Laws 2004-186, s. 5.2, provides: "The public members serving on the Child Fatality Task Force on the effective date of this act shall complete their current terms. The new appointments contained in Section 1 of this act shall take effect at the end of those terms."

Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium."

Session Laws 2020-78, s. 22.3, is a severability clause.

Effect of Amendments. - Session Laws 2016-94, s. 32.5(h), effective July 1, 2016, substituted "The chair of the Council for Women and Youth Involvement" for "The Director of the Governor's Youth Advocacy and Involvement Office" in subdivision (b)(6).

Session Laws 2020-78, s. 4F.1(a), effective August 1, 2020, in subsection (b), in the introductory paragraph, substituted "36 members, 12 of" for "35 members, 11 of" in the first sentence, deleted "shall be nonvoting members and" following "Chief Medical Examiner" in the second sentence, and added the third sentence; substituted "the Maternal and Child Health Section" for "Division of Maternal and Child Health" in subdivision (b)(5); added subdivision (b)(11a); added "or safe infant sleep" and substituted "Maternal and Child Health Section" for "Division of Maternal and Child Health" in subdivision (b)(13); in subdivision (b)(14), substituted "NC Child" for "North Carolina Child Advocacy Institute" near the beginning and "organization" for "Institute" at the end; substituted "NC Child" for "North Carolina Child Advocacy Institute" in subdivision (b)(16); and made minor punctuation changes throughout.

§ 7B-1403. Task Force - duties.

The Task Force shall:

  1. Undertake a statistical study of the incidences and causes of child deaths in this State and establish a profile of child deaths. The study shall include (i) an analysis of all community and private and public agency involvement with the decedents and their families prior to death, and (ii) an analysis of child deaths by age, cause, and geographic distribution;
  2. Develop a system for multidisciplinary review of child deaths. In developing such a system, the Task Force shall study the operation of existing Local Teams. The Task Force shall also consider the feasibility and desirability of local or regional review teams and, should it determine such teams to be feasible and desirable, develop guidelines for the operation of the teams. The Task Force shall also examine the laws, rules, and policies relating to confidentiality of and access to information that affect those agencies with responsibilities for children, including State and local health, mental health, social services, education, and law enforcement agencies, to determine whether those laws, rules, and policies inappropriately impede the exchange of information necessary to protect children from preventable deaths, and, if so, recommend changes to them;
  3. Receive and consider reports from the State Team; and
  4. Perform any other studies, evaluations, or determinations the Task Force considers necessary to carry out its mandate.

History

(1991, c. 689, s. 233(a); 1996, 2nd Ex. Sess., c. 17, s. 3.2; 1998-202, s. 6; 1998-212, s. 12.44(a), (c).)

§ 7B-1404. State Team - creation; membership; vacancies.

  1. There is created the North Carolina Child Fatality Prevention Team within the Department of Health and Human Services for budgetary purposes only.
  2. The State Team shall be composed of the following 11 members of whom nine members are ex officio and two are appointed:
    1. The Chief Medical Examiner, who shall chair the State Team;
    2. The Attorney General;
    3. The Director of the Division of Social Services, Department of Health and Human Services;
    4. The Director of the State Bureau of Investigation;
    5. The Director of the Division of Maternal and Child Health of the Department of Health and Human Services;
    6. The Superintendent of Public Instruction;
    7. The Director of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, Department of Health and Human Services;
    8. The Director of the Administrative Office of the Courts;
    9. The pediatrician appointed pursuant to G.S. 7B-1402(b) to the Task Force;
    10. A public member, appointed by the Governor; and
    11. The Team Coordinator.
  3. All members of the State Team are voting members. Vacancies in the appointed membership shall be filled by the appointing officer who made the initial appointment.

The ex officio members other than the Chief Medical Examiner may designate a representative from their departments, divisions, or offices to represent them on the State Team.

History

(1991, c. 689, s. 233(a); 1993, c. 321, s. 285(a); 1997-443, s. 11A.99; 1997-456, s. 27; 1998-202, s. 6.)

§ 7B-1405. State Team - duties.

The State Team shall:

  1. Review current deaths of children when those deaths are attributed to child abuse or neglect or when the decedent was reported as an abused or neglected juvenile pursuant to G.S. 7B-301 at any time before death;
  2. Report to the Task Force during the existence of the Task Force, in the format and at the time required by the Task Force, on the State Team's activities and its recommendations for changes to any law, rule, and policy that would promote the safety and well-being of children;
  3. Upon request of a Local Team, provide technical assistance to the Team;
  4. Periodically assess the operations of the multidisciplinary child fatality prevention system and make recommendations for changes as needed;
  5. Work with the Team Coordinator to develop guidelines for selecting child deaths to receive detailed, multidisciplinary death reviews by Local Teams that review cases of additional child fatalities; and
  6. Receive reports of findings and recommendations from Local Teams that review cases of additional child fatalities and work with the Team Coordinator to implement recommendations.

History

(1991, c. 689, s. 233(a); 1993, c. 321, s. 285(a); 1997-443, s. 11A.99; 1997-456, s. 27; 1998-202, s. 6.)

§ 7B-1406. Community Child Protection Teams; Child Fatality Prevention Teams; creation and duties.

  1. Community Child Protection Teams are established in every county of the State. Each Community Child Protection Team shall:
    1. Review, in accordance with the procedures established by the director of the county department of social services under G.S. 7B-1409:
      1. Selected active cases in which children are being served by child protective services; and
      2. Cases in which a child died as a result of suspected abuse or neglect, and
        1. A report of abuse or neglect has been made about the child or the child's family to the county department of social services within the previous 12 months, or
        2. The child or the child's family was a recipient of child protective services within the previous 12 months.
    2. Submit annually to the board of county commissioners recommendations, if any, and advocate for system improvements and needed resources where gaps and deficiencies may exist.
  2. Any Community Child Protection Team that determines it will not review additional child fatalities shall notify the Team Coordinator. In accordance with the plan established under G.S. 7B-1408(1), a separate Child Fatality Prevention Team shall be established in that county to conduct these reviews. Each Child Fatality Prevention Team shall:
    1. Review the records of all cases of additional child fatalities.
    2. Submit annually to the board of county commissioners recommendations, if any, and advocate for system improvements and needed resources where gaps and deficiencies may exist.
    3. Report findings in connection with these reviews to the Team Coordinator.
  3. All reports to the Team Coordinator under this section shall include:
    1. A listing of the system problems identified through the review process and recommendations for preventive actions;
    2. Any changes that resulted from the recommendations made by the Local Team;
    3. Information about each death reviewed; and
    4. Any additional information requested by the Team Coordinator.

In addition, each Community Child Protection Team may review the records of all additional child fatalities and report findings in connection with these reviews to the Team Coordinator.

History

(1993, c. 321, s. 285(a); 1998-202, s. 6.)

§ 7B-1407. Local Teams; composition.

  1. Each Local Team shall consist of representatives of public and nonpublic agencies in the community that provide services to children and their families and other individuals who represent the community. No single team shall encompass a geographic or governmental area larger than one county.
  2. Each Local Team shall consist of the following persons:
    1. The director of the county department of social services and a member of the director's staff;
    2. A local law enforcement officer, appointed by the board of county commissioners;
    3. An attorney from the district attorney's office, appointed by the district attorney;
    4. The executive director of the local community action agency, as defined by the Department of Health and Human Services, or the executive director's designee;
    5. The superintendent of each local school administrative unit located in the county, or the superintendent's designee;
    6. A member of the county board of social services, appointed by the chair of that board;
    7. A local mental health professional, appointed by the director of the area authority established under Chapter 122C of the General Statutes;
    8. The local guardian ad litem coordinator, or the coordinator's designee;
    9. The director of the local department of public health; and
    10. A local health care provider, appointed by the local board of health.
  3. In addition, a Local Team that reviews the records of additional child fatalities shall include the following five additional members:
    1. An emergency medical services provider or firefighter, appointed by the board of county commissioners;
    2. A district court judge, appointed by the chief district court judge in that district;
    3. A county medical examiner, appointed by the Chief Medical Examiner;
    4. A representative of a local child care facility or Head Start program, appointed by the director of the county department of social services; and
    5. A parent of a child who died before reaching the child's eighteenth birthday, to be appointed by the board of county commissioners.
  4. The Team Coordinator shall serve as an ex officio member of each Local Team that reviews the records of additional child fatalities. The board of county commissioners may appoint a maximum of five additional members to represent county agencies or the community at large to serve on any Local Team. Vacancies on a Local Team shall be filled by the original appointing authority.
  5. Each Local Team shall elect a member to serve as chair at the Team's pleasure.
  6. Each Local Team shall meet at least four times each year.
  7. The director of the local department of social services shall call the first meeting of the Community Child Protection Team. The director of the local department of health, upon consultation with the Team Coordinator, shall call the first meeting of the Child Fatality Prevention Team. Thereafter, the chair of each Local Team shall schedule the time and place of meetings, in consultation with these directors, and shall prepare the agenda. The chair shall schedule Team meetings no less often than once per quarter and often enough to allow adequate review of the cases selected for review. Within three months of election, the chair shall participate in the appropriate training developed under this Article.

History

(1993, c. 321, s. 285(a); 1997-443, s. 11A.100; 1997-456, s. 27; 1997-506, s. 52; 1998-202, s. 6.)

§ 7B-1408. Child Fatality Prevention Team Coordinator; duties.

The Child Fatality Prevention Team Coordinator shall serve as liaison between the State Team and the Local Teams that review records of additional child fatalities and shall provide technical assistance to these Local Teams. The Team Coordinator shall:

  1. Develop a plan to establish Local Teams that review the records of additional child fatalities in each county.
  2. Develop model operating procedures for these Local Teams that address when public meetings should be held, what items should be addressed in public meetings, what information may be released in written reports, and any other information the Team Coordinator considers necessary.
  3. Provide structured training for these Local Teams at the time of their establishment, and continuing technical assistance thereafter.
  4. Provide statistical information on all child deaths occurring in each county to the appropriate Local Team, and assure that all child deaths in a county are assessed through the multidisciplinary system.
  5. Monitor the work of these Local Teams.
  6. Receive reports of findings, and other reports that the Team Coordinator may require, from these Local Teams.
  7. Report the aggregated findings of these Local Teams to each Local Team that reviews the records of additional child fatalities and to the State Team.
  8. Evaluate the impact of local efforts to identify problems and make changes.

History

(1993, c. 321, s. 285(a); 1998-202, s. 6.)

§ 7B-1409. Community Child Protection Teams; duties of the director of the county department of social services.

In addition to any other duties as a member of the Community Child Protection Team, and in connection with the reviews under G.S. 7B-1406(a)(1), the director of the county department of social services shall:

  1. Assure the development of written operating procedures in connection with these reviews, including frequency of meetings, confidentiality policies, training of members, and duties and responsibilities of members;
  2. Assure that the Team defines the categories of cases that are subject to its review;
  3. Determine and initiate the cases for review;
  4. Bring for review any case requested by a Team member;
  5. Provide staff support for these reviews;
  6. Maintain records, including minutes of all official meetings, lists of participants for each meeting of the Team, and signed confidentiality statements required under G.S. 7B-1413, in compliance with applicable rules and law; and
  7. Report quarterly to the county board of social services, or as required by the board, on the activities of the Team.

History

(1993, c. 321, s. 285(a); 1998-202, s. 6.)

§ 7B-1410. Local Teams; duties of the director of the local department of health.

In addition to any other duties as a member of the Local Team and in connection with reviews of additional child fatalities, the director of the local department of health shall:

  1. Distribute copies of the written procedures developed by the Team Coordinator under G.S. 7B-1408 to the administrators of all agencies represented on the Local Team and to all members of the Local Team;
  2. Maintain records, including minutes of all official meetings, lists of participants for each meeting of the Local Team, and signed confidentiality statements required under G.S. 7B-1413, in compliance with applicable rules and law;
  3. Provide staff support for these reviews; and
  4. Report quarterly to the local board of health, or as required by the board, on the activities of the Local Team.

History

(1993, c. 321, s. 285(a); 1998-202, s. 6.)

§ 7B-1411. Community Child Protection Teams; responsibility for training of team members.

The Division of Social Services, Department of Health and Human Services, shall develop and make available, on an ongoing basis, for the members of Local Teams that review active cases in which children are being served by child protective services, training materials that address the role and function of the Local Team, confidentiality requirements, an overview of child protective services law and policy, and Team record keeping.

History

(1993, c. 321, s. 285(a); 1997-443, s. 11A.118(a); 1998-202, s. 6.)

§ 7B-1412. Task Force - reports.

The Task Force shall report annually to the Governor and General Assembly, within the first week of the convening or reconvening of the General Assembly. The report shall contain at least a summary of the conclusions and recommendations for each of the Task Force's duties, as well as any other recommendations for changes to any law, rule, or policy that it has determined will promote the safety and well-being of children. Any recommendations of changes to law, rule, or policy shall be accompanied by specific legislative or policy proposals and detailed fiscal notes setting forth the costs to the State.

History

(1991, c. 689, s. 233(a); 1991 (Reg. Sess., 1992), c. 900, s. 169(a); 1993 (Reg. Sess., 1994), c. 769, s. 27.8(a); 1996, 2nd Ex. Sess., c. 17, ss. 3.1, 3.2; 1998-202, s. 6; 1998-212, s. 12.44(a), (d).)

§ 7B-1413. Access to records.

  1. The State Team, the Local Teams, and the Task Force during its existence, shall have access to all medical records, hospital records, and records maintained by this State, any county, or any local agency as necessary to carry out the purposes of this Article, including police investigations data, medical examiner investigative data, health records, mental health records, and social services records. The State Team, the Task Force, and the Local Teams shall not, as part of the reviews authorized under this Article, contact, question, or interview the child, the parent of the child, or any other family member of the child whose record is being reviewed. Any member of a Local Team may share, only in an official meeting of that Local Team, any information available to that member that the Local Team needs to carry out its duties.
  2. Meetings of the State Team and the Local Teams are not subject to the provisions of Article 33C of Chapter 143 of the General Statutes. However, the Local Teams may hold periodic public meetings to discuss, in a general manner not revealing confidential information about children and families, the findings of their reviews and their recommendations for preventive actions. Minutes of all public meetings, excluding those of executive sessions, shall be kept in compliance with Article 33C of Chapter 143 of the General Statutes. Any minutes or any other information generated during any closed session shall be sealed from public inspection.
  3. All otherwise confidential information and records acquired by the State Team, the Local Teams, and the Task Force during its existence, in the exercise of their duties are confidential; are not subject to discovery or introduction into evidence in any proceedings; and may only be disclosed as necessary to carry out the purposes of the State Team, the Local Teams, and the Task Force. In addition, all otherwise confidential information and records created by a Local Team in the exercise of its duties are confidential; are not subject to discovery or introduction into evidence in any proceedings; and may only be disclosed as necessary to carry out the purposes of the Local Team. No member of the State Team, a Local Team, nor any person who attends a meeting of the State Team or a Local Team, may testify in any proceeding about what transpired at the meeting, about information presented at the meeting, or about opinions formed by the person as a result of the meetings. This subsection shall not, however, prohibit a person from testifying in a civil or criminal action about matters within that person's independent knowledge.
  4. Each member of a Local Team and invited participant shall sign a statement indicating an understanding of and adherence to confidentiality requirements, including the possible civil or criminal consequences of any breach of confidentiality.
  5. Cases receiving child protective services at the time of review by a Local Team shall have an entry in the child's protective services record to indicate that the case was received by that Team. Additional entry into the record shall be at the discretion of the director of the county department of social services.
  6. The Social Services Commission shall adopt rules to implement this section in connection with reviews conducted by Community Child Protection Teams. The Commission for Public Health shall adopt rules to implement this section in connection with Local Teams that review additional child fatalities. In particular, these rules shall allow information generated by an executive session of a Local Team to be accessible for administrative or research purposes only.

History

(1991, c. 689, s. 233(a); 1993, c. 321, s. 285(a); 1998-202, s. 6; 2007-182, s. 1.3.)

Effect of Amendments. - Session Laws 2007-182, s. 1.3, effective July 5, 2007, substituted "Commission for Public Health" for "Health Services Commission" in subsection (f).

§ 7B-1414. Administration; funding.

  1. To the extent of funds available, the chairs of the Task Force and State Team may hire staff or consultants to assist the Task Force and the State Team in completing their duties.
  2. Members, staff, and consultants of the Task Force or State Team shall receive travel and subsistence expenses in accordance with the provisions of G.S. 138-5 or G.S. 138-6, as the case may be, paid from funds appropriated to implement this Article and within the limits of those funds.
  3. With the approval of the Legislative Services Commission, legislative staff and space in the Legislative Building and the Legislative Office Building may be made available to the Task Force.

History

(1991, c. 689, s. 233(a); 1998-202, s. 6.)

CASE NOTES

Cited in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).


SUBCHAPTER 02. UNDISCIPLINED AND DELINQUENT JUVENILES.

ARTICLE 15. Purposes; Definitions.

Sec.

§ 7B-1500. Purpose.

This Subchapter shall be interpreted and construed so as to implement the following purposes and policies:

  1. To protect the public from acts of delinquency.
  2. To deter delinquency and crime, including patterns of repeat offending:
    1. By providing swift, effective dispositions that emphasize the juvenile offender's accountability for the juvenile's actions; and
    2. By providing appropriate rehabilitative services to juveniles and their families.
  3. To provide an effective system of intake services for the screening and evaluation of complaints and, in appropriate cases, where court intervention is not necessary to ensure public safety, to refer juveniles to community-based resources.
  4. To provide uniform procedures that assure fairness and equity; that protect the constitutional rights of juveniles, parents, and victims; and that encourage the court and others involved with juvenile offenders to proceed with all possible speed in making and implementing determinations required by this Subchapter.

History

(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 1; 1998-202, s. 6.)

Cross References. - As to establishment of School-Based Child and Family Team Initiative established, see note under G.S. 143B-366.

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 [Division of Juvenile Justice], 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 [Division of Juvenile Justice], 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 [Division of Juvenile Justice]. - The Secretary of the Department of Juvenile Justice and Delinquency Prevention [Secretary of Public Safety] shall ensure that all agencies within the Department [Division} 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."

Editor's Note. - Session Laws 2011-145, s. 17.8, provides: "The Department of Juvenile Justice and Delinquency Prevention [Division of Juvenile Justice] shall report by October 1 of each year to the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety, the Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight Committee, and the Fiscal Research Division on the Youth Development Center (YDC) population, staffing, and capacity in the preceding fiscal year. Specifically, the report shall include all of the following:

"(1) The on-campus population of each YDC, including the county the juveniles are from.

"(2) The housing capacity of each YDC.

"(3) A breakdown of staffing for each YDC, including number, type of position, position title, and position description.

"(4) The per-bed and average daily population cost for each facility.

"(5) The operating cost for each facility, including personnel and nonpersonnel items.

"(6) A brief summary of the treatment model, education, services, and plans for reintegration into the community offered at each facility.

"(7) The average length of stay in the YDCs.

"(8) The number of incidents of assaults/attacks on staff at each facility."

Session Laws 2011-145, s. 17.9, provides: "The Department of Juvenile Justice and Delinquency Prevention [Division of Juvenile Justice] shall report electronically on the first day of each month to the Fiscal Research Division regarding each juvenile correctional facility and the average daily population for the previous month. The report shall include (i) the average daily population for each detention center and (ii) the monthly summary of the Committed Youth Report."

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.

Session Laws 2015-241, s. 16A.4, provides: "The former juvenile detention facility known as Samarkand Manor, located in Moore County, is redesignated a law enforcement and corrections training facility and assigned to the Office of the Secretary of the Department of Public Safety. The facility shall be renamed Samarcand Training Academy and shall be administered by a Director. The operating budget for Samarcand Training Academy shall be funded by the Department of Public Safety but shall be independent of the operating budget of any Division within the Department and shall be managed and administered by the Director of the Academy with oversight by the Office of the Secretary of the Department of Public Safety."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is a severability clause.

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).

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, "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. - Some of the following cases were decided prior to the enactment of this Chapter.

The common thread running throughout the Juvenile Code (formerly G.S. 7A-516, 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).

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).

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).

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 (formerly 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).

Cited in In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001); In re K.W., 191 N.C. App. 812, 664 S.E.2d 66 (2008); In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010); In re J.A.G., 206 N.C. App. 318, 696 S.E.2d 809 (2010); In re T.K., 253 N.C. App. 443, 800 S.E.2d 463 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 720 (N.C. 2017).


§ 7B-1501. Definitions.

In this Subchapter, unless the context clearly requires otherwise, the following words have the listed meanings. The singular includes the plural, unless otherwise specified:

  1. Chief court counselor. - The person responsible for administration and supervision of juvenile intake, probation, and post-release supervision in each judicial district, operating under the supervision of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
  2. Clerk. - Any clerk of superior court, acting clerk, or assistant or deputy clerk.
  3. Community-based program. - A program providing nonresidential or residential treatment to a juvenile under the jurisdiction of the juvenile court in the community where the juvenile's family lives. A community-based program may include specialized foster care, family counseling, shelter care, and other appropriate treatment.
  4. Court. - The district court division of the General Court of Justice.
  5. Repealed by Session Laws 2001-490, s. 2.1, effective June 30, 2001.
  6. Custodian. - The person or agency that has been awarded legal custody of a juvenile by a court.
  7. Delinquent juvenile. -
    1. Any juvenile who, while less than 16 years of age but at least 6 years of age, commits a crime or infraction under State law or under an ordinance of local government, including violation of the motor vehicle laws, or who commits indirect contempt by a juvenile as defined in G.S. 5A-31.
    2. Any juvenile who, while less than 18 years of age but at least 16 years of age, commits a crime or an infraction under State law or under an ordinance of local government, excluding all violations of the motor vehicle laws under Chapter 20 of the General Statutes, or who commits indirect contempt by a juvenile as defined in G.S. 5A-31.
  8. Detention. - The secure confinement of a juvenile under a court order.
  9. Detention facility. - A facility approved to provide secure confinement and care for juveniles. Detention facilities include both State and locally administered detention homes, centers, and facilities.
  10. District. - Any district court district as established by G.S. 7A-133.
  11. Division. - The Division of Adult Correction and Juvenile Justice of the Department of Public Safety created under Article 12 of Chapter 143B of the General Statutes.
  12. Holdover facility. - A place in a jail which has been approved by the Department of Health and Human Services as meeting the State standards for detention as required in G.S. 153A-221 providing close supervision where the juvenile cannot converse with, see, or be seen by the adult population.
  13. House arrest. - A requirement that the juvenile remain at the juvenile's residence unless the court or the juvenile court counselor authorizes the juvenile to leave for school, counseling, work, or other similar specific purposes, provided the juvenile is accompanied in transit by a parent, legal guardian, or other person approved by the juvenile court counselor.
  14. Intake. - The process of screening and evaluating a complaint alleging that a juvenile is delinquent or undisciplined to determine whether the complaint should be filed as a petition.
  15. Interstate Compact on Juveniles. - An agreement ratified by 50 states and the District of Columbia providing a formal means of returning a juvenile, who is an absconder, escapee, or runaway, to the juvenile's home state, and codified in Article 28 of this Chapter.
  16. Judge. - Any district court judge.
  17. Judicial district. - Any district court district as established by G.S. 7A-133.
  18. Juvenile. - Except as provided in subdivisions (7) and (27) of this section, any 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. Wherever the term "juvenile" is used with reference to rights and privileges, that term encompasses the attorney for the juvenile as well.
  19. Juvenile court. - Any district court exercising jurisdiction under this Chapter.
  20. Juvenile court counselor. - A person responsible for intake services and court supervision services to juveniles under the supervision of the chief court counselor.
  21. Repealed by Session Laws 2000, c. 137, s. 2, effective July 20, 2000.
  22. Petitioner. - The individual who initiates court action by the filing of a petition or a motion for review alleging the matter for adjudication.
  23. Post-release supervision. - The supervision of a juvenile who has been returned to the community after having been committed to the Division for placement in a youth development center.
  24. Probation. - The status of a juvenile who has been adjudicated delinquent, is subject to specified conditions under the supervision of a juvenile court counselor, and may be returned to the court for violation of those conditions during the period of probation.
  25. Prosecutor. - The district attorney or an assistant district attorney.
  26. Protective supervision. - The status of a juvenile who has been adjudicated undisciplined and is under the supervision of a juvenile court counselor.
  27. Teen court program. - A community resource for the diversion of cases in which a juvenile has allegedly committed certain offenses for hearing by a jury of the juvenile's peers, which may assign the juvenile to counseling, restitution, curfews, community service, or other rehabilitative measures.
  28. Repealed by Session Laws 2001-95, s. 1, effective May 18, 2001.
  29. Undisciplined juvenile. -
    1. A juvenile who, while less than 16 years of age but at least 6 years of age, is unlawfully absent from school; or is regularly disobedient to and beyond the disciplinary control of the juvenile's parent, guardian, or custodian; or is regularly found in places where it is unlawful for a juvenile to be; or has run away from home for a period of more than 24 hours; or
    2. A juvenile who is 16 or 17 years of age and who is regularly disobedient to and beyond the disciplinary control of the juvenile's parent, guardian, or custodian; or is regularly found in places where it is unlawful for a juvenile to be; or has run away from home for a period of more than 24 hours.
  30. Victim. - Any individual or entity against whom a crime or infraction is alleged to have been committed by a juvenile based on reasonable grounds that the alleged facts are true. For purposes of Article 17 of this Chapter, the term may also include a parent, guardian, or custodian of a victim under the age of 18 years of age.
  31. Wilderness program. - A rehabilitative residential treatment program in a rural or outdoor setting.
  32. Youth development center. - A secure residential facility authorized to provide long-term treatment, education, and rehabilitative services for delinquent juveniles committed by the court to the Division.

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, ss. 3, 3.2; 1997-443, s. 11A.118(a); 1997-506, s. 30; 1998-202, s. 6; 1998-229, s. 1; 2000-137, s. 2; 2001-95, ss. 1, 2, 5; 2001-487, s. 3; 2001-490, s. 2.1; 2007-168, s. 2; 2009-545, s. 1; 2009-547, s. 1; 2011-145, s. 19.1(l); 2011-183, s. 4; 2017-57, s. 16D.4(a); 2017-186, s. 2(j); 2018-142, s. 23(b); 2019-186, s. 1(a).)

Editor's Note. - Subdivision (7a) was amended by 2011-145, s. 19.1( l ) to substitute "Division" for "Department." It has been redesignated as subdivision (10a) at the direction of the Revisor of Statutes to maintain alphabetical order.

Session Laws 2013-360, s. 8.49(a)-(d), as amended by Session Laws 2014-115, s. 64, provides: "(a) Notwithstanding any provisions in Part 1 of Article 26 of Chapter 115C of the General Statutes, G.S. 7B-1501(27), 115C-238.66(3), 116-235(b)(2), and 143B-805(20) to the contrary, the State Board of Education shall authorize the Hickory Public Schools and the Newton-Conover City Schools to establish and implement a pilot program pursuant to this section to increase the high school dropout age from 16 years of age to the completion of the school year coinciding with the calendar year in which a student reaches 18 years of age, unless the student has previously graduated from high school.

"(a1) For the purposes of implementing the pilot program authorized by this section, a local school administrative unit that is participating in the pilot program shall have the authority to provide that, if the principal or the principal's designee determines that a student's parent, guardian, or custodian, or a student who is 18 years of age, has not made a good-faith effort to comply with the compulsory attendance requirements of the pilot program, the principal shall notify the district attorney and, if the student is less than 18 years of age, the director of social services of the county where the student resides. If the principal or the principal's designee determines that a parent, guardian, or custodian of a student less than 18 years of age has made a good-faith effort to comply with the law, the principal may file a complaint with the juvenile court counselor pursuant to Chapter 7B of the General Statutes that the student is habitually absent from school without a valid excuse. Upon receiving notification by the principal or the principal's designee, the director of social services shall determine whether to undertake an investigation under G.S. 7B-302.

"(a2) The local boards of education of the participating local school administrative units shall prescribe specific rules to address under what circumstances a student who is 18 years of age who is required to attend school as part of the pilot program shall be excused from attendance, including if the student has attained a high school equivalency certificate or a student has enlisted as a member of the Armed Forces.

"(a4) If an affidavit is made by the student, parent of the student, or by any other person that any student who is required to attend school under the requirements of the pilot program is not able to attend school by reason of necessity to work or labor for the support of himself or herself or the support of the family, then the school social worker of the applicable school located within the participating school administrative unit shall diligently inquire into the matter and bring it to the attention of an appropriate court, depending on the age of the student. The court shall proceed to find whether as a matter of fact the student is unable to attend the school or such parents, or persons standing in loco parentis, are unable to send the student to school for the term of compulsory attendance for the reasons given. If the court finds, after careful investigation, that the student or the parents have made or are making a bona fide effort to comply with the compulsory attendance law, and by reason of illness, lack of earning capacity, or any other cause which the court may deem valid and sufficient, the student is unable to attend school, then the court shall find and state what help is needed for the student or family to enable compliance with the attendance requirements under the pilot program.

"(b) Each local school administrative unit may use any funds available to it to implement the pilot program in accordance with this section to (i) employ up to three additional teachers and (ii) fund additional student-related costs, such as transportation and technology costs, including additional computers, to serve a greater number of students as a result of the pilot program. Each local school administrative unit may also use any funds available to it to operate a night school program for students at risk of dropping out of high school. To the extent possible, the local school administrative units shall partner with Catawba Valley Community College in administering the pilot program.

"(c) The local school administrative units, in collaboration with the State Board of Education, shall report to the Joint Legislative Education Oversight Committee, the House Appropriations Subcommittee on Education, and the Senate Appropriations Committee on Education/Higher Education on or before January 15, 2016. The report shall include at least all of the following information:

"(1) An analysis of the graduation rate in each local school administrative unit and the impact of the pilot program on the graduation rate.

"(2) The teen crime statistics for Catawba County.

"(3) The number of reported cases of violations of compulsory attendance laws in Catawba County and the disposition of those cases.

"(3a) Implementation of enforcement mechanisms for violations of the compulsory attendance requirements of the pilot program, including the imposition of criminal penalties.

"(4) The number of at-risk students served in any night programs established as part of the pilot program and student graduation and performance outcomes for those students.

"(5) All relevant data to assist in determining the effectiveness of the program and specific legislative recommendations, including the continuation, modification, or expansion of the program statewide.

"(d) The State Board of Education shall not authorize a pilot program under subsection (a) of this section except upon receipt of a copy of a joint resolution adopted by the boards of education for the Hickory Public Schools and the Newton-Conover City Schools setting forth a date to begin establishment and implementation of the pilot program."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5 is a severability clause.

See notes under G.S. 115C-238.66 for Session Laws 2016-94, s. 8.21(a)-(h), for full provisions relating to the pilot program in the Hickory Public Schools, the Newton-Conover City Schools, and the Rutherford County Schools to increase the high school dropout age from 16 years of age to the completion of the school year coinciding with the calendar year in which a student reaches 18 years of age.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(a), added the sub-subdivision (7)a. designation; added sub-subdivision (7)b.; and added subdivision (27a).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2019-186, s. 12, made the amendment of sub-subdivision (7)b. by Session Laws 2019-186, s. 1(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2009-545, s. 1, effective December 1, 2009, substituted "or an assistant district attorney" for "or assistant district attorney assigned by the district attorney to juvenile proceedings" at the end of subdivision (23).

Session Laws 2009-547, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, substituted "leave for school, counseling, work, or other similar specific purposes, provided the juvenile is accompanied in transit by a parent, legal guardian, or other person approved by the juvenile court counselor" for "leave for specific purposes" at the end of subdivision (12).

Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, in subdivision (10a), substituted "Division of Juvenile Justice of the Department of Public Safety" for "Department of Juvenile Justice and Delinquency Prevention" and "Division" for "Department."

Session Laws 2011-183, s. 4, effective June 20, 2011, substituted "Armed Forces" for "armed forces" in subdivision (17).

Session Laws 2017-57, s. 16D.4(a), added the sub-subdivision (7)a. designation; added sub-subdivision (7)b.; and added subdivision (27a). For effective date and applicability, see editor's note.

Session Laws 2017-186, s. 2(j), effective December 1, 2017, inserted "Adult Correction and" in subdivisions (1) and (10a).

Session Laws 2019-186, s. 1(a), substituted "all violations" for "violation" and inserted "under Chapter 20 of the General Statutes" in subdivision (7)(b). For effective date and applicability, see editor's note.

Legal Periodicals. - For empirical study, "The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System", see 40 Wake Forest L. Rev. 727 (2005).

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, "You're Only as 'Free to Leave' as You Feel: Police Encounters with Juveniles and the Trouble with Differential Standards for Investigatory Stops Under In re I.R.T," see 88 N.C.L. Rev. 1389 (2010).

For article, "Casting off the Curse of God: Litigation Versus Legislation and the Educational Rights of Youth in North Carolina's Adult Criminal Justice System," see 91 N.C. L. Rev. 36 (2013).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Distinction Between Undisciplined and Delinquent Children Is Relevant to State's Objective. - In seeking solutions which provide in each case for the protection, treatment, rehabilitation and correction of the child, it is impellingly relevant to the achievement of the State's objective that distinctions be made between undisciplined children on the one hand and delinquent children on the other. In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).

Evidence Sufficient to Convict of Crime Is Sufficient to Permit Finding of Delinquency. - Where there was sufficient evidence to convict the accused of the crime alleged in the petition, then there was sufficient evidence to permit a finding that the accused was a delinquent child. State v. Rush, 13 N.C. App. 539, 186 S.E.2d 595 (1972).

No Finding of Delinquency Where Evidence Insufficient to Convict Juvenile of Crime. - Where the evidence in a juvenile hearing was insufficient to convict the juvenile of the crime alleged in the petition, subornation of perjury, there could be no finding that the juvenile was a delinquent. In re Roberts, 8 N.C. App. 513, 174 S.E.2d 667 (1970).

Removal of Probation Violations from Definition of "Delinquent Child". - The amendment of former G.S. 7A-278(2), removing violation of probation from the definition of "delinquent child," indicated an intent that only criminal activity could provide the basis for an adjudication of delinquency. The legislative purpose in removing probation violations as the basis for adjudications of delinquency would be frustrated if the courts were to take those very same violations, treat them as criminal contempt, and then base adjudications of delinquency on the contempt proceedings. In re Jones, 59 N.C. App. 547, 297 S.E.2d 168 (1982).

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).

A motion to dismiss a petition seeking to declare a juvenile a delinquent was properly denied when there was substantial evidence that the juvenile respondent committed a criminal offense or violated a condition of a probationary judgment. In re Byers, 295 N.C. 256, 244 S.E.2d 665 (1978).

Facts Insufficient to Prove Child Delinquent. - On a petition alleging that a child of 12 was delinquent, as defined in former G.S. 7A-517(12) (see now G.S. 7B-1501(7)), where the State established only that the child entered an unlocked door into a lighted store during daylight hours, that he did so in front of at least one known witness, and that he took nothing, the State's evidence failed to establish the elements of the crime charged (breaking and entering with intent to commit larceny) and dismissal of the action was improperly denied. In re Wallace, 57 N.C. App. 593, 291 S.E.2d 796 (1982).

Constitutionality. - The provisions of subdivision (5) of former G.S. 7A-278, defining "undisciplined child" (see now subdivision (27) of this section defining "undisciplined juvenile") were not unconstitutionally vague or indefinite. In re Walker, 14 N.C. App. 356, 188 S.E.2d 731, aff'd, 282 N.C. 28, 191 S.E.2d 702 (1972).

A finding in a juvenile commitment proceeding that a 15-year-old girl was beyond the disciplinary control of her parents or custodian and was therefore a delinquent child in need of the supervision, protection, and custody of the State, was sufficient to bring the girl within the statutory definition of an "undisciplined child" (now see definition of "undisciplined juvenile"). In re Martin, 9 N.C. App. 576, 176 S.E.2d 849 (1970).

Proper Allegation of First Degree Murder. - Petition alleging that "juvenile was delinquent as defined by former G.S. 7A-517(12) [see now this section] 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 G.S. 7B-402] requirements, 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).

Cited in In re May, 153 N.C. App. 299, 569 S.E.2d 704 (2002), aff'd, 357 N.C. 423, 584 S.E.2d 271 (2003); In re May, 357 N.C. 423, 584 S.E.2d 271 (2003); In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010);.


ARTICLE 16. Jurisdiction.

Sec.

§ 7B-1600. Jurisdiction over undisciplined juveniles.

  1. The court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be undisciplined. For purposes of determining jurisdiction, the age of the juvenile at the time of the alleged offense governs.
  2. When the court obtains jurisdiction over a juvenile under this section, jurisdiction shall continue until terminated by order of the court, the juvenile reaches the age of 18 years, or the juvenile is emancipated.
  3. The court has jurisdiction over the parent, guardian, or custodian of a juvenile who is under the jurisdiction of the court pursuant to this section, if the parent, guardian, or custodian has been served with a summons pursuant to G.S. 7B-1805.

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.)

Establish Juvenile Jurisdiction Advisory Committee. - Session Laws 2017-57, s. 16D.4(kk)-(ss), provides: "(kk) Advisory Committee Established. - There is established within the Division of Adult Correction and Juvenile Justice of the Department of Public Safety the Juvenile Jurisdiction Advisory Committee. The Division of Adult Correction and Juvenile Justice shall provide professional and clerical staff and other services and supplies, including meeting space, as needed for the Advisory Committee to carry out its duties in an effective manner.

"( ll ) Membership. - The Advisory Committee shall consist of 21 members. The following members or their designees shall serve as ex officio members:

"(1) The Deputy Commissioner for Juvenile Justice of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.

"(2) The Director of the Administrative Office of the Courts.

"(3) The Director of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services of the Department of Health and Human Services.

"(4) The Superintendent of Public Instruction.

"(5) The Juvenile Defender in the Office of Indigent Defense.

"(6) The Executive Director of the North Carolina Sentencing and Policy Advisory Commission.

"(7) One representative from the Juvenile Justice Planning Committee of the Governor's Crime Commission.

"The remaining members shall be appointed as follows:

"(8) Two chief court counselors appointed by the Governor, one to be from a rural county and one from an urban county.

"(9) One chief district court judge and one superior court judge appointed by the Chief Justice of the North Carolina Supreme Court.

"(10) One police chief appointed by the President Pro Tempore of the Senate.

"(11) One sheriff appointed by the Speaker of the House of Representatives.

"(12) One clerk of superior court appointed by the President Pro Tempore of the Senate.

"(13) One district attorney appointed by the Speaker of the House of Representatives.

"(14) One assistant district attorney who handles juvenile matters appointed by the Conference of District Attorneys.

"(15) One assistant public defender who handles juvenile matters appointed by the North Carolina Association of Public Defenders.

"(16) Two representatives from the juvenile advocacy community, one appointed by the President Pro Tempore of the Senate and one appointed by the Speaker of the House of Representatives.

"(17) Two representatives from the victim advocacy community, one appointed by the President Pro Tempore of the Senate and one appointed by the Speaker of the House of Representatives.

"Appointments to the Advisory Committee shall be made no later than October 1, 2017. A vacancy in the Advisory Committee or a vacancy as chair of the Advisory Committee resulting from the resignation of a member or otherwise shall be filled in the same manner in which the original appointment was made.

"(mm) Chair; Meetings. - The President Pro Tempore of the Senate and the Speaker of the House of Representatives shall each designate one member to serve as cochair of the Advisory Committee.

"The cochairs shall call the initial meeting of the Advisory Committee on or before November 1, 2017. The Advisory Committee shall subsequently meet upon such notice and in such manner as its members determine. A majority of the members of the Advisory Committee shall constitute a quorum.

"(oo) Cooperation by Government Agencies. - The Advisory Committee may call upon any department, agency, institution, or officer of the State or any political subdivision thereof for facilities, data, or other assistance.

"(pp) Duties of Advisory Committee. - The Advisory Committee shall develop a specific plan for the implementation of any changes in the juvenile justice system that would be required in order to extend jurisdiction in delinquency matters and proceedings to include 16- and 17-year-old persons within the juvenile justice system. The plan shall include cost estimates for each portion of the plan, including capital costs, operating costs, and staffing costs. As the expansion of the jurisdiction of the Division of Juvenile Justice to include persons 16 and 17 years of age who commit crimes or infractions becomes effective pursuant to this act, the Advisory Committee shall monitor and review the implementation of the expansion and shall make additional recommendations to the General Assembly as necessary.

"(qq) Consultation. - The Advisory Committee shall consult with appropriate State departments, agencies, and board representatives on issues related to juvenile justice administration.

"(rr) Report. - By March 1, 2018, the Advisory Committee shall submit an interim report to the General Assembly with copies to the Joint Legislative Oversight Committee on Justice and Public Safety and to the Appropriations Committees on Justice and Public Safety of both houses containing (i) the specific plan and the cost estimates for capital, operating, and staffing costs for implementation of this section, including legislative, administrative, and funding recommendations necessary to implement the increase in juvenile jurisdiction to include 16- and 17-year-old persons and (ii) cost estimates for capital, operating, and staffing costs if the implementation of this section was staggered based on age. The interim report shall also include its findings and recommendations as to whether the extension of jurisdiction in delinquency matters and proceedings should include juveniles who commit the following offenses:

"(1) Habitual misdemeanor assault (G.S. 14-33.2).

"(2) Crime against nature (G.S. 14-177).

"(3) Obscene literature and exhibitions (G.S. 14-190.1).

"(4) Third degree sexual exploitation of a minor (G.S. 14-190.17A).

"(5) Solicitation of a child by computer to commit an unlawful sex act (G.S. 14-202.3).

"(6) Stalking when court order in effect (G.S. 14-277.3A).

"(7) The Class A1 offense of misdemeanor assault on a law enforcement officer.

"(8) Assault inflicting serious bodily injury; strangulation (G.S. 14-32.4).

"(9) Fraudulently setting fire to dwelling houses (G.S. 14-65).

"(10) Any offense requiring registration as a sex offender pursuant to Article 27A of Chapter 14 of the General Statutes.

"(11) Any other offense the Committee deems appropriate for exclusion.

"The Advisory Committee shall submit additional interim reports with updates on the planning steps completed towards implementation, including any legislative, administrative, and funding recommendations, annually by January 15 of each year.

"The Advisory Committee shall submit a final report on the implementation of this section and its findings and recommendations, including legislative, administrative, and funding recommendations, by January 15, 2023, to the General Assembly and the Governor. The Advisory Committee shall terminate on February 1, 2023, or upon the filing of its final report, whichever occurs earlier.

"(ss) Funding. - The Advisory Committee may apply for, receive, and accept grants of non-State funds or other contributions as appropriate to assist in the performance of its duties."

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

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. - Some 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.

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).

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).

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).

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).

Cited in In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010); In re K.C., 226 N.C. App. 452, 742 S.E.2d 239 (2013), review denied, 747 S.E.2d 530, 2013 N.C. LEXIS 786 (2013).


§ 7B-1601. Jurisdiction over delinquent juveniles.

  1. The court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be delinquent. For purposes of determining jurisdiction, the age of the juvenile at the time of the alleged offense governs.
  2. When the court obtains jurisdiction over a juvenile alleged to be delinquent for an offense committed prior to the juvenile reaching the age of 16 years, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years, except as provided otherwise in this Article.
  3. When the court obtains jurisdiction over a juvenile alleged to be delinquent for an offense committed while the juvenile was at least 16 years of age but less than 17 years of age, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 19 years. If the offense was committed while the juvenile was at least 17 years of age, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 20 years.
  4. When delinquency proceedings for a juvenile alleged to be delinquent for an offense committed prior to the juvenile reaching the age of 16 years cannot be concluded before the juvenile reaches the age of 18 years, the court retains jurisdiction for the sole purpose of conducting proceedings pursuant to Article 22 of this Chapter and either transferring the case to superior court for trial as an adult or dismissing the petition.
  5. When delinquency proceedings for a juvenile alleged to be delinquent for an offense committed while the juvenile was at least 16 years of age but less than 17 years of age cannot be concluded before the juvenile reaches the age of 19 years, the court retains jurisdiction for the sole purpose of conducting proceedings pursuant to Article 22 of this Chapter and either transferring the case to superior court for trial as an adult or dismissing the petition. When delinquency proceedings for a juvenile alleged to be delinquent for an offense committed while the juvenile was at least 17 years of age cannot be concluded before the juvenile reaches the age of 20 years, the court retains jurisdiction for the sole purpose of conducting proceedings pursuant to Article 22 of this Chapter and either transferring the case to superior court for trial as an adult or dismissing the petition.
  6. When the court has not obtained jurisdiction over a juvenile before the juvenile reaches the age of 18, for a felony and any related misdemeanors the juvenile allegedly committed on or after the juvenile's thirteenth birthday and prior to the juvenile's sixteenth birthday, the court has jurisdiction for the sole purpose of conducting proceedings pursuant to Article 22 of this Chapter and either transferring the case to superior court for trial as an adult or dismissing the petition.
  7. When the court has not obtained jurisdiction over a juvenile before the juvenile reaches the age of 19, for a felony and related misdemeanors the juvenile allegedly committed while the juvenile was at least 16 years of age but less than 17 years of age, the court has jurisdiction for the sole purpose of conducting proceedings pursuant to Article 22 of this Chapter and either transferring the case to superior court for trial as an adult or dismissing the petition. When the court has not obtained jurisdiction over a juvenile before the juvenile reaches the age of 20, for a felony and related misdemeanors the juvenile allegedly committed while the juvenile was at least 17 years of age but less than 18 years of age, the court has jurisdiction for the sole purpose of conducting proceedings pursuant to Article 22 of this Chapter and either transferring the case to superior court for trial as an adult or dismissing the petition.
  8. The court has jurisdiction over delinquent juveniles in the custody of the Division and over proceedings to determine whether a juvenile who is under the post-release supervision of the juvenile court counselor has violated the terms of the juvenile's post-release supervision.
  9. The court has jurisdiction over persons 18 years of age or older who are under the extended jurisdiction of the juvenile court.
  10. The court has jurisdiction over the parent, guardian, or custodian of a juvenile who is under the jurisdiction of the court pursuant to this section if the parent, guardian, or custodian has been served with a summons pursuant to G.S. 7B-1805.

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; 2000-137, s. 3; 2001-490, s. 2.2; 2011-145, 19.1( l ); 2017-57, s. 16D.4(b); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(b), inserted "for an offense committed prior to the juvenile reaching the age of 16 years,” in subsection (b); added subsection (b1); inserted "for a juvenile alleged to be delinquent for an offense committed prior to the juvenile reaching the age of 16 years” in subsection (c); and added subsections (c1) and (d1).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in subsection (e).

Session Laws 2017-57, s. 16D.4(b), inserted "for an offense committed prior to the juvenile reaching the age of 16 years," in subsection (b); added subsection (b1); inserted "for a juvenile alleged to be delinquent for an offense committed prior to the juvenile reaching the age of 16 years" in subsection (c); and added subsections (c1) and (d1). For effective date and applicability, see editor's note.

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.

Nature of Proceedings. - As the district court division has exclusive original jurisdiction of Juvenile Code matters, actions under ther 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).

It was error for the court of appeals to vacate a juvenile's delinquency adjudication based on a sexual battery charge on the grounds that a juvenile court counselor (JCC) did not comply with the timelines contained in G.S. 7B-1703, when the JCC had filed a petition alleging the juvenile committed simple assault and then filed a second petition, based on the same incident, alleging the juvenile committed sexual battery, on the grounds that the alleged failure to comply with these timelines deprived the trial court of subject matter jurisdiction, because the legislature did not intend G.S. 7B-1703's timing requirements to be jurisdictional, as the legislature did not mention jurisdiction in the statute or state a JCC's failure to meet the statutory timing requirements divested a court of subject matter jurisdiction. In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).

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).

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).

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).

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).

Adult Convictions. - State court's records relating to defendant's 1995 convictions revealed that they were adult convictions; although a seventeen-year-old could be tried in North Carolina as either a juvenile or an adult, G.S. 7B-2200 and G.S. 7B-2203, North Carolina's district courts possessed exclusive, original jurisdiction over any case involving a juvenile who was alleged to be delinquent, G.S. 7B-1601, thus, if defendant was tried and convicted as a juvenile, he could have been prosecuted only in a North Carolina district court. The judgments underlying defendant's 1995 convictions, however, demonstrated that he was convicted and sentenced in the Superior Court of Surry County, North Carolina, and his 1995 Convictions were therefore necessarily adult convictions. United States v. Allen, 446 F.3d 522 (4th Cir. 2006).

Applied in State v. Collins, 245 N.C. App. 478, 783 S.E.2d 9 (2016).

Cited in In re J.S.W., 211 N.C. App. 620, 711 S.E.2d 471 (2011); In re K.C., 226 N.C. App. 452, 742 S.E.2d 239 (2013), review denied, 747 S.E.2d 530, 2013 N.C. LEXIS 786 (2013).


§ 7B-1602. Extended jurisdiction over a delinquent juvenile under certain circumstances.

  1. When a juvenile is committed to the Division for placement in a youth development center for an offense that would be first degree murder pursuant to G.S. 14-17, first-degree forcible rape pursuant to G.S. 14-27.21, first-degree statutory rape pursuant to G.S. 14-27.24, first-degree forcible sexual offense pursuant to G.S. 14-27.26, or first-degree statutory sexual offense pursuant to G.S. 14-27.29 if committed by an adult, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 21 years, whichever occurs first.
  2. When a juvenile is committed to the Division for placement in a youth development center for an offense that would be a Class B1, B2, C, D, or E felony if committed by an adult, other than an offense set forth in subsection (a) of this section, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 19 years, whichever occurs first.

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; 2000-137, s. 3; 2001-95, s. 5; 2011-145, s. 19.1( l ); 2015-181, s. 25.)

Editor's Note. - 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. 25, had substituted "forcible rape pursuant to G.S. 14-27.21, first-degree statutory rape pursuant to G.S. 14-27.24, first-degree forcible sexual offense pursuant to G.S. 14-27.26, or first-degree statutory sexual offense pursuant to G.S. 14-27.29" for "rape pursuant to G.S. 14-27.2, or first-degree sexual offense pursuant to G.S. 14-27.4" in subsection (a).

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" both times it appears.

Session Laws 2015-181, s. 25, effective December 1, 2015, substituted "forcible rape pursuant to G.S. 14-27.21, first-degree statutory rape pursuant to G.S. 14-27.24, first-degree forcible sexual offense pursuant to G.S. 14-27.26, or first-degree statutory sexual offense pursuant to G.S. 14-27.29" for "rape pursuant to G.S. 14-27.2, or first-degree sexual offense pursuant to G.S. 14-27.4" in subsection (a). For applicability, see editor's note.

CASE NOTES

Editor's Note. - One of the following cases was decided prior to the enactment of this Chapter.

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).

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).

Cited in In re J.S.W., 211 N.C. App. 620, 711 S.E.2d 471 (2011); In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).


§ 7B-1603. Jurisdiction in certain circumstances.

The court has exclusive original jurisdiction of all of the following proceedings:

  1. Proceedings under the Interstate Compact on the Placement of Children set forth in Article 38 of this Chapter.
  2. Proceedings involving judicial consent for emergency surgical or medical treatment for a juvenile when the juvenile's parent, guardian, custodian, or 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.
  3. Proceedings to determine whether a juvenile should be emancipated.
  4. Proceedings in which a juvenile has been ordered pursuant to G.S. 5A-32(b) to appear and show cause why the juvenile should not be held in contempt.

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; 2007-168, s. 3.)

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.

Nature of Proceedings. - As the district court division has exclusive original jurisdiction of Juvenile Code matters, actions under ther 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).

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).

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).

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).


§ 7B-1604. Limitations on juvenile court jurisdiction.

  1. Any juvenile, including a juvenile who is under the jurisdiction of the court, who commits a criminal offense on or after the juvenile has reached the age of 18 years is subject to prosecution as an adult. A juvenile who is emancipated shall be prosecuted as an adult for the commission of a criminal offense.
  2. A juvenile shall be prosecuted as an adult for any criminal offense the juvenile commits after a district or superior court conviction if either of the following applies:
    1. The juvenile has previously been transferred to and convicted in superior court.
    2. The juvenile has previously been convicted in either district or superior court for a felony or a misdemeanor. Violations of the motor vehicle laws punishable as a misdemeanor or infraction shall not be considered a conviction for the purposes of this subsection unless the conviction is for an offense involving impaired driving as defined by G.S. 20-4.01(24a).

History

(1979, c. 815, s. 1; 1981, c. 469, s. 4; 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; 2017-57, s. 16D.4(c); 2018-142, s. 23(b); 2019-186, s. 2.)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(c), substituted "juvenile has reached the age of 18 years” for "juvenile's sixteenth birthday” in the first sentence of subsection (a); and rewrote subsection (b), which read: "A juvenile who is transferred to and convicted in superior court shall be prosecuted as an adult for any criminal offense the juvenile commits after the superior court conviction.”

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2019-186, s. 12, made the amendment of subsection (b) by Session Laws 2019-186, s. 2, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4(c), substituted "juvenile has reached the age of 18 years" for "juvenile's sixteenth birthday" in the first sentence of subsection (a); and rewrote subsection (b), which read: "A juvenile who is transferred to and convicted in superior court shall be prosecuted as an adult for any criminal offense the juvenile commits after the superior court conviction." For effective date and applicability, see editor's note.

Session Laws 2019-186, s. 2, rewrote subsection (b), which formerly read: "A juvenile (i) who is transferred to and convicted in superior court or (ii) who has previously been convicted in either district or superior court for a felony or a misdemeanor, including a violation of the motor vehicle laws under State law, shall be prosecuted as an adult for any criminal offense the juvenile commits after the district or superior court conviction." For effective date and applicability, see editor's note.

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).

For comment, "'It's Not World Peace, But...' Restorative Justice: Analysis of Recidivism Rates in Campbell Law School's Juvenile Justice Project," see 30 Campbell L. Rev. 339 (2008).

For article, "Casting off the Curse of God n1: Litigation Versus Legislation and the Educational Rights of Youth in North Carolina's Adult Criminal Justice System," see 91 N.C. L. Rev. 36 (2013).

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.

Nature of Proceedings. - As the district court division has exclusive original jurisdiction of Juvenile Code matters, actions under ther 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).

Crime Committed When Defendant Was 16 Years Old. - As there was substantial evidence that defendant was 16 during the time frame when he sexually abused the victim, the superior court had jurisdiction over the matter under G.S. 7B-1604(a). State v. Pettigrew, 204 N.C. App. 248, 693 S.E.2d 698 (2010), dismissed, 364 N.C. 439, 706 S.E.2d 467, 2010 N.C. LEXIS 1160 (2010).

Jurisdiction clearly existed in the superior court for the fourth count of first-degree rape of a child, as the indictment alleged a period of time which included a time when defendant was 16 years old and clearly under the jurisdiction of the superior court. State v. Collins, 245 N.C. App. 478, 783 S.E.2d 9 (2016).

No Evidence Defendant Was 16 Years Old at Time of Offense. - Defendant's convictions for three counts of first-degree rape of a child had to be vacated because the superior court was without subject matter jurisdiction due to the fact that no evidence presented at trial showed that defendant was at least 16 years old at the time those offenses were committed. State v. Collins, 245 N.C. App. 478, 783 S.E.2d 9 (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).

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).

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).

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).

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).


ARTICLE 17. Screening of Delinquency and Undisciplined Complaints.

Sec.

§ 7B-1700. Intake services.

The chief court counselor, under the direction of the Division, shall establish intake services in each judicial district of the State for all delinquency and undisciplined cases.

The purpose of intake services shall be to determine from available evidence whether there are reasonable grounds to believe the facts alleged are true, to determine whether the facts alleged constitute a delinquent or undisciplined offense within the jurisdiction of the court, to determine whether the facts alleged are sufficiently serious to warrant court action, and to obtain assistance from community resources when court referral is not necessary. The juvenile court counselor shall not engage in field investigations to substantiate complaints or to produce supplementary evidence but may refer complainants to law enforcement agencies for those purposes.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2000-137, s. 3; 2001-490, s. 2.3; 2011-145, s. 19.1( l ).)

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.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in the first paragraph.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor's Note. - One of the following cases was decided prior to the enactment of this Chapter.

Prior Approval for Filing of Petition. - Before a juvenile petition may be filed charging any juvenile with being delinquent or undisciplined, the record must affirmatively disclose that either the intake counselor or the district attorney has approved the filing of such petition. Furthermore, when the district attorney approves the filing of such petition, the record must affirmatively disclose that the intake counselor has theretofore disapproved the filing. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Juvenile court counselor (JCC) did not violate G.S. 7B-1702 when evaluating a complaint against appellant, a juvenile, because (1) an officer's evidence showed legal sufficiency and jurisdiction supporting the complaint, making victim contact unnecessary, as the JCC thoroughly considered the crimes' seriousness, an assault victim's existence, and appellant's juvenile history, and (2) the legislature intended use of statutory investigative methods only "if practicable." In re T.H., 218 N.C. App. 123, 721 S.E.2d 728 (2012).

Cited in In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).

Opinions of Attorney General

Authority of Chief Court Counselor. - A local administrative order issued by the Chief District Court Judge prohibiting the diversion of juveniles from the juvenile justice system in cases arising from the public school system would not be consistent with the law, in that it would usurp the statutory authority provided to the chief court counselor by the General Assembly. See opinion of Attorney General to Joel H. Brewer, District Attorney, N.C. General Assembly, 1999 N.C.A.G. 15 (6/9/99), rendered prior to enactment of this Chapter.

§ 7B-1700.1. Duty to report abuse, neglect, dependency.

Any time a juvenile court counselor or any person has cause to suspect that a juvenile is abused, neglected, or dependent, or has died as the result of maltreatment, the juvenile court counselor or the person shall make a report to the county department of social services as required by G.S. 7B-301.

History

(2009-311, s. 14.)

Editor's Note. - Session Laws 2009-311, s. 19, made this section effective October 1, 2009.

§ 7B-1701. Preliminary inquiry.

When a complaint is received, the juvenile court counselor shall make a preliminary determination as to whether the juvenile is within the jurisdiction of the court as a delinquent or undisciplined juvenile. If the juvenile court counselor finds that the facts contained in the complaint do not state a case within the jurisdiction of the court, that legal sufficiency has not been established, or that the matters alleged are frivolous, the juvenile court counselor, without further inquiry, shall refuse authorization to file the complaint as a petition.

If a complaint against the juvenile has not been previously received, as determined by the juvenile court counselor, the juvenile court counselor shall make reasonable efforts to meet with the juvenile and the juvenile's parent, guardian, or custodian if the offense is divertable.

When requested by the juvenile court counselor, the prosecutor shall assist in determining the sufficiency of evidence as it affects the quantum of proof and the elements of offenses.

The juvenile court counselor, without further inquiry, shall authorize the complaint to be filed as a petition if the juvenile court counselor finds reasonable grounds to believe that the juvenile has committed one of the following nondivertible offenses:

  1. Murder;
  2. First-degree rape or second degree rape;
  3. First-degree sexual offense or second degree sexual offense;
  4. Arson;
  5. Any violation of Article 5, Chapter 90 of the General Statutes that would constitute a felony if committed by an adult;
  6. First degree burglary;
  7. Crime against nature; or
  8. Any felony which involves the willful infliction of serious bodily injury upon another or which was committed by use of a deadly weapon.

History

(1979, c. 815, s. 1; 1983, c. 251, s. 1; 1998-202, s. 6; 2001-490, s. 2.4; 2015-58, s. 2.1.)

Editor's Note. - Session Laws 2015-58, s. 4, made the second paragraph, as added by Session Laws 2015-58, s. 2.1, applicable to offenses committed on or after December 1, 2015.

Effect of Amendments. - Session Laws 2015-58, s. 2.1, effective December 1, 2015, inserted 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).

For article on the efficacy of a probable cause requirement in juvenile proceedings, see 59 N.C.L. Rev. 723 (1981).

For empirical study, "The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System," see 40 Wake Forest L. Rev. 727 (2005).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Prior Approval of Filing of Petition Required. - Before a juvenile petition may be filed charging any juvenile with being delinquent or undisciplined, the record must affirmatively disclose that either the intake counselor or the district attorney has approved the filing of such petition. Furthermore, when the district attorney approves the filing of such petition, the record must affirmatively disclose that the intake counselor has theretofore disapproved the filing. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Juvenile court counselor (JCC) did not violate G.S. 7B-1702 when evaluating a complaint against appellant, a juvenile, because (1) an officer's evidence showed legal sufficiency and jurisdiction supporting the complaint, making victim contact unnecessary, as the JCC thoroughly considered the crimes' seriousness, an assault victim's existence, and appellant's juvenile history, and (2) the legislature intended use of statutory investigative methods only "if practicable." In re T.H., 218 N.C. App. 123, 721 S.E.2d 728 (2012).

Limits on Involvement of District Attorney. - The district attorney's involvement in cases charging juveniles with being undisciplined or delinquent, before the juvenile petition is filed, is limited to (1) Assisting the intake counselor, when requested, during the preliminary inquiry in determining the legal sufficiency of the evidence, and (2) reviewing the decision of the intake counselor not approving the filing of a juvenile petition, and affirming the decision of the intake counselor or directing the filing of a petition himself. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Time Requirements. - It was error to vacate a juvenile's delinquency adjudication for sexual battery on the grounds that a juvenile court counselor (JCC) did not file the petition on which the adjudication was based within the timelines required by G.S. 7B-1703 because the JCC timely filed the petition, as the required timelines began when the JCC received a complaint alleging sexual battery one day before the petition was filed, even though the JCC had previously filed a simple assault petition based on the same incident. In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).


§ 7B-1702. Evaluation.

Upon a finding of legal sufficiency, except in cases involving nondivertible offenses set out in G.S. 7B-1701, the juvenile court counselor shall determine whether a complaint should be filed as a petition, the juvenile diverted pursuant to G.S. 7B-1706, or the case resolved without further action. In making the decision, the counselor shall consider criteria provided by the Department and shall conduct a gang assessment for juveniles who are 12 years of age or older. The intake process shall include the following steps if practicable:

  1. Interviews with the complainant and the victim if someone other than the complainant;
  2. Interviews with the juvenile and the juvenile's parent, guardian, or custodian;
  3. Interviews with persons known to have relevant information about the juvenile or the juvenile's family.

Interviews required by this section shall be conducted in person unless it is necessary to conduct them by telephone.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 5; 1998-202, s. 6; 2000-137, s. 3; 2001-490, s. 2.5; 2011-145, s. 19.1( l ); 2017-57, s. 16D.4(ee); 2017-197, s. 5.4; 2018-142, s. 23(b); 2019-186, s. 3.)

Editor's Note. - Session Laws 2017-57, s. 16D.4(ff), provides: "(ff) The Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall develop a gang assessment instrument to be used in accordance with subsection (ee) of this section. The form shall be developed in consultation with the administrator of the GangNET database maintained by the North Carolina State Highway Patrol, and the Division may also consult with other entities that might provide information relevant to the development of an effective assessment tool."

Session Laws 2017-57, s. 16D.4(jj), as amended by Session Laws 2017-197, s. 5.4 made the amendment to this section by Acts 2017-57, s. 16D.4(ee), effective December 1, 2019, and applicable to offenses committed on or after that date. Session Laws 2017-57, s. 16D.4(ee), added "and shall conduct a gang assessment'' at the end of the second sentence of the introductory paragraph.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides, "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2019-186, s. 12, made the amendment of this section by Session Laws 2019-186, s. 3, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in the introductory paragraph.

Session Laws 2017-57, s. 16D.4(ee), added "and shall conduct a gang assessment" at the end of the second sentence of the introductory paragraph. For effective date and applicability, see editor's note.

Session Laws 2019-186, s. 3, inserted "for juveniles who are 12 years of age or older" in the introductory paragraph. For effective date and 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. - One of the following cases was decided prior to the enactment of this Chapter.

Prior Approval of Filing of Petition Required. - Before a juvenile petition may be filed charging any juvenile with being delinquent or undisciplined, the record must affirmatively disclose that either the intake counselor or the district attorney has approved the filing of such petition. Furthermore, when the district attorney approves the filing of such petition, the record must affirmatively disclose that the intake counselor has theretofore disapproved the filing. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Juvenile court counselor (JCC) did not violate G.S. 7B-1702 when evaluating a complaint against appellant, a juvenile, because (1) an officer's evidence showed legal sufficiency and jurisdiction supporting the complaint, making victim contact unnecessary, as the JCC thoroughly considered the crimes' seriousness, an assault victim's existence, and appellant's juvenile history, and (2) the legislature intended use of statutory investigative methods only "if practicable." In re T.H., 218 N.C. App. 123, 721 S.E.2d 728 (2012).

Main purpose of G.S. 7B-1702 was for a juvenile court counselor (JCC) to evaluate the factors as provided by the Department of Juvenile Justice and Delinquency Prevention (DJJDP) and determine whether the filing of a petition against a juvenile respondent was necessary, and the statute merely provides methods by which the JCC can obtain information to evaluate the DJJDP factors, but the methods shall only be used "if practicable." In re T.H., 218 N.C. App. 123, 721 S.E.2d 728 (2012).

Dismissal of Petitions Filed 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 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 to victim. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Cited in In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).


§ 7B-1703. Evaluation decision.

  1. The juvenile court counselor shall complete evaluation of a complaint within 15 days of receipt of the complaint, with an extension for a maximum of 15 additional days at the discretion of the chief court counselor. The juvenile court counselor shall decide within this time period whether a complaint shall be filed as a juvenile petition.
  2. Except as provided in G.S. 7B-1706, if the juvenile court counselor determines that a complaint should be filed as a petition, the counselor shall file the petition as soon as practicable, but in any event within 15 days after the complaint is received, with an extension for a maximum of 15 additional days at the discretion of the chief court counselor. The juvenile court counselor shall assist the complainant when necessary with the preparation and filing of the petition, shall include on it the date and the words "Approved for Filing", shall sign it, and shall transmit it to the clerk of superior court.
  3. If the juvenile court counselor determines that a petition should not be filed, the juvenile court counselor shall notify the complainant and the victim, if the complainant is not the victim, immediately in writing with specific reasons for the decision, whether or not legal sufficiency was found, and whether the matter was closed or diverted and retained, and shall include notice of the complainant's and victim's right to have the decision reviewed by the prosecutor. The juvenile court counselor shall sign the complaint after indicating on it:
    1. The date of the determination;
    2. The words "Not Approved for Filing"; and
    3. Whether the matter is "Closed" or "Diverted and Retained".

Except as provided in G.S. 7B-1706, any complaint not approved for filing as a juvenile petition shall be destroyed by the juvenile court counselor after holding the complaint for a temporary period to allow review as provided in G.S. 7B-1705.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2001-490, s. 2.6; 2017-57, s. 16D.4(t); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(t), effective October 1, 2017, rewrote the first sentence of subsection (c), which read: "If the juvenile court counselor determines that a petition should not be filed, the juvenile court counselor shall notify the complainant immediately in writing with reasons for the decision and shall include notice of the complainant's right to have the decision reviewed by the prosecutor”.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4(t), effective October 1, 2017, rewrote the first sentence of subsection (c), which read: "If the juvenile court counselor determines that a petition should not be filed, the juvenile court counselor shall notify the complainant immediately in writing with reasons for the decision and shall include notice of the complainant's right to have the decision reviewed by the prosecutor". For effective date and 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.

Prior Approval of Filing of Petition Required. - Before a juvenile petition may be filed charging any juvenile with being delinquent or undisciplined, the record must affirmatively disclose that either the intake counselor or the district attorney has approved the filing of such petition. Furthermore when the district attorney approves the filing of such petition, the record must affirmatively disclose that the intake counselor has theretofore disapproved the filing. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Petition alleging appellant delinquent for disorderly conduct at school failed to include a signature from the juvenile court counselor and did not indicate whether or not it was "approved for filing," as required by G.S. 7B-1703. The trial court therefore was without jurisdiction to proceed on the merits of the petition. In re T.K., 253 N.C. App. 443, 800 S.E.2d 463 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 720 (N.C. 2017).

Petition alleging delinquency that does not include the signature of a juvenile court counselor, or other appropriate representative of the State, and the language "approved for filing," the petition fails to invoke the trial court's jurisdiction in the subject matter. In re T.K., 253 N.C. App. 443, 800 S.E.2d 463 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 720 (N.C. 2017).

Dismissal of Petitions Filed 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 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 to victim. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Untimely Petition. - Trial court did not have jurisdiction over a juvenile petition because the petition was not filed in the office of the clerk of superior court until more than thirty days after receipt of the complaint and thus was untimely pursuant to G.S. 7B-1703; the timely filing of a petition seeking judicial action was jurisdictional. In re J.B., 186 N.C. App. 301, 650 S.E.2d 457 (2007).

Trial court erred by adjudicating a juvenile delinquent as a result of the juvenile court counselor failing to file the petition within the 15-day period following the filing of the complaint as mandated by G.S. 7B-1703(b); thus, the trial court lacked jurisdiction to decide the matter. In re K.W., 191 N.C. App. 812, 664 S.E.2d 66 (2008).

It was error for the court of appeals to vacate a juvenile's delinquency adjudication based on a sexual battery charge on the grounds that a juvenile court counselor (JCC) did not comply with the timelines contained in G.S. 7B-1703, when the JCC had filed a petition alleging the juvenile committed simple assault and then filed a second petition, based on the same incident, alleging the juvenile committed sexual battery, because the JCC complied with the statute's timelines, requiring the JCC to file a petition within 15 days of receiving a complaint, since (1) the JCC filed the sexual battery petition one day after receiving a complaint alleging the juvenile committed sexual battery, (2) the JCC was not required to investigate the facts underlying the prior, simple assault, complaint to determine if the facts supported the filing of a petition alleging sexual battery, and, (3) while the assault complaint alleged the juvenile touched a victim on the victim's buttocks and between the victim's legs, that complaint did not allege the juvenile committed sexual battery or touched the victim for purposes of sexual arousal or gratification. In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).

It was error for the court of appeals to vacate a juvenile's delinquency adjudication based on a sexual battery charge on the grounds that a juvenile court counselor (JCC) did not comply with the timelines contained in G.S. 7B-1703, when the JCC had filed a petition alleging the juvenile committed simple assault and then filed a second petition, based on the same incident, alleging the juvenile committed sexual battery, on the grounds that the alleged failure to comply with these timelines deprived the trial court of subject matter jurisdiction, because the legislature did not intend G.S. 7B-1703's timing requirements to be jurisdictional, as the legislature did not mention jurisdiction in the statute or state a JCC's failure to meet the statutory timing requirements divested a court of subject matter jurisdiction. In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).

Applied in In re J.A.G., 206 N.C. App. 318, 696 S.E.2d 809 (2010).

Cited in Catawba Cty. v. Loggins, 370 N.C. 83, 804 S.E.2d 474 (2017).


§ 7B-1704. Request for review by prosecutor.

The complainant and the victim have five calendar days, from receipt of the juvenile court counselor's decision not to approve the filing of a petition, to request review by the prosecutor. The juvenile court counselor shall notify the prosecutor immediately of such request and shall transmit to the prosecutor a copy of the complaint. The prosecutor shall notify the complainant, the victim, and the juvenile court counselor of the time and place for the review.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2001-490, s. 2.7; 2017-57, s. 16D.4(u); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(u), substituted "complainant and the victim have” for "complainant has” in the first sentence, and substituted "complainant, the victim” for "complainant” in the last sentence.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4(u), substituted "complainant and the victim have" for "complainant has" in the first sentence, and substituted "complainant, the victim" for "complainant" in the last sentence. For effective date and 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. - The following case was decided prior to the enactment of this Chapter.

Prior Approval of Filing of Petition Required. - Before a juvenile petition may be filed charging any juvenile with being delinquent or undisciplined, the record must affirmatively disclose that either the intake counselor or the district attorney has approved the filing of such petition. Furthermore when the district attorney approves the filing of such petition, the record must affirmatively disclose that the intake counselor has theretofore disapproved the filing. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Dismissal of Petitions Filed Against Juveniles Treated Unequally. - The trial court erred in not dismissing petitions against six juveniles who received unequal treatment vis a vis 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 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 to victim. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Cited in In re T.K., 253 N.C. App. 443, 800 S.E.2d 463 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 720 (N.C. 2017).


§ 7B-1705. Review of determination that petition should not be filed.

No later than 20 days after the complainant and the victim are notified, the prosecutor shall review the juvenile court counselor's determination that a juvenile petition should not be filed. Review shall include conferences with the complainant, the victim, and the juvenile court counselor. At the conclusion of the review, the prosecutor shall: (i) affirm the decision of the juvenile court counselor or direct the filing of a petition and (ii) notify the complainant and the victim of the prosecutor's action.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 6; 1998-202, s. 6; 2001-490, s. 2.8; 2017-57, s. 16D.4(v); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(v), added "the victim” in three places and made stylistic changes.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4(v), added "the victim" in three places and made stylistic changes. For effective date and applicability, see editor's note.

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Limits on Involvement of District Attorney. - The district attorney's involvement in cases charging juveniles with being undisciplined or delinquent, before the juvenile petition is filed, is limited to (1) Assisting the intake counselor, when requested, during the preliminary inquiry in determining the legal sufficiency or the evidence, and (2) reviewing the decision of the intake counselor not approving the filing of a juvenile petition, and affirming the decision of the intake counselor or directing the filing of a petition himself. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Prior Approval of Filing of Petition Required. - Before a juvenile petition may be filed charging any juvenile with being delinquent or undisciplined, the record must affirmatively disclose that either the intake counselor or the district attorney has approved the filing of such petition. Furthermore when the district attorney approves the filing of such petition, the record must affirmatively disclose that the intake counselor has theretofore disapproved the filing. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Dismissal of Petitions Filed 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 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 to victim. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Cited in In re T.K., 253 N.C. App. 443, 800 S.E.2d 463 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 720 (N.C. 2017).


§ 7B-1706. Diversion plans and referral.

  1. Unless the offense is one in which a petition is required by G.S. 7B-1701, upon a finding of legal sufficiency the juvenile court counselor may divert the juvenile pursuant to a diversion plan, which may include referring the juvenile to any of the following resources:
    1. An appropriate public or private resource;
    2. Restitution;
    3. Community service;
    4. Victim-offender mediation;
    5. Regimented physical training;
    6. Counseling;
    7. A teen court program, as set forth in subsection (c) of this section.
  2. Unless the offense is one in which a petition is required by G.S. 7B-1701, upon a finding of legal sufficiency the juvenile court counselor may enter into a diversion contract with the juvenile and the parent, guardian, or custodian; provided, a diversion contract requires the consent of the juvenile and the juvenile's parent, guardian, or custodian. A diversion contract shall:
    1. State conditions by which the juvenile agrees to abide and any actions the juvenile agrees to take;
    2. State conditions by which the parent, guardian, or custodian agrees to abide and any actions the parent, guardian, or custodian agrees to take;
    3. Describe the role of the juvenile court counselor in relation to the juvenile and the parent, guardian, or custodian;
    4. Specify the length of the contract, which shall not exceed six months;
    5. Indicate that all parties understand and agree that:
      1. The juvenile's violation of the contract may result in the filing of the complaint as a petition; and
      2. The juvenile's successful completion of the contract shall preclude the filing of a petition.
  3. If a teen court program has been established in the district, the juvenile court counselor, upon a finding of legal sufficiency, may refer to a teen court program, any case in which a juvenile has allegedly committed an offense that would be an infraction or misdemeanor if committed by an adult. However, the juvenile court counselor shall not refer a case to a teen court program if the juvenile is alleged to have committed any of the following offenses:
    1. Driving while impaired under G.S. 20-138.1, 20-138.2, 20-138.3, 20-138.5, or 20-138.7, or any other motor vehicle violation;
    2. A Class A1 misdemeanor;
    3. An assault in which a weapon is used; or
    4. A controlled substance offense under Article 5 of Chapter 90 of the General Statutes, other than simple possession of a Schedule VI drug or alcohol.
  4. The juvenile court counselor shall maintain diversion plans and contracts entered into pursuant to this section to allow juvenile court counselors to determine when a juvenile has had a complaint diverted previously. Diversion plans and contracts are not public records under Chapter 132 of the General Statutes, shall not be included in the clerk's record pursuant to G.S. 7B-3000, and shall be withheld from public inspection or examination. Diversion plans and contracts shall be destroyed when the juvenile reaches the age of 18 years or when the juvenile is no longer under the jurisdiction of the court, whichever is longer.
  5. No later than 60 days after the juvenile court counselor diverts a juvenile, the juvenile court counselor shall determine whether the juvenile and the juvenile's parent, guardian, or custodian have complied with the terms of the diversion plan or contract. In making this determination, the juvenile court counselor shall contact any referral resources to determine whether the juvenile and the juvenile's parent, guardian, or custodian complied with any recommendations for treatment or services made by the resource. If the juvenile and the juvenile's parent, guardian, or custodian have not complied, the juvenile court counselor shall reconsider the decision to divert and may authorize the filing of the complaint as a petition within 10 days after making the determination. If the juvenile court counselor does not file a petition, the juvenile court counselor may continue to monitor the case for up to six months from the date of the diversion plan or contract. At any point during that time period if the juvenile and the juvenile's parent, guardian, or custodian fail to comply, the juvenile court counselor shall reconsider the decision to divert and may authorize the filing of the complaint as a petition. After six months, the juvenile court counselor shall close the diversion plan or contract file.

As part of a diversion plan, the juvenile court counselor may enter into a diversion contract with the juvenile and the juvenile's parent, guardian, or custodian.

After a diversion contract is signed by the parties, the juvenile court counselor shall provide copies of the contract to the juvenile and the juvenile's parent, guardian, or custodian. The juvenile court counselor shall notify any agency or other resource from which the juvenile or the juvenile's parent, guardian, or custodian will be seeking services or treatment pursuant to the terms of the contract. At any time during the term of the contract if the juvenile court counselor determines that the juvenile has failed to comply substantially with the terms of the contract, the juvenile court counselor may file the complaint as a petition. Unless the juvenile court counselor has filed the complaint as a petition, the juvenile court counselor shall close the juvenile's file in regard to the diverted matter within six months after the date of the contract.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2001-490, s. 2.9; 2019-41, s. 1.)

Effect of Amendments. - Session Laws 2019-41, s. 1, effective June 21, 2019, deleted "(i) if the juvenile has been referred to a teen court program previously, or (ii)" preceding "if the juvenile" in subsection (c).

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Cited in In re K.W., 191 N.C. App. 812, 664 S.E.2d 66 (2008); In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010); In re J.A.G., 206 N.C. App. 318, 696 S.E.2d 809 (2010); In re T.H., 218 N.C. App. 123, 721 S.E.2d 728 (2012); In re T.K., 253 N.C. App. 443, 800 S.E.2d 463 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 720 (N.C. 2017).


§ 7B-1707. Direct contempt by juvenile.

The preceding sections of this Article do not apply when a juvenile is ordered pursuant to G.S. 5A-32(b) to appear and show cause why the juvenile should not be held in contempt.

History

(2007-168, s. 4.)

Editor's Note. - Session Laws 2007-168, s. 8, makes this section effective December 1, 2007, and applicable to acts occurring or offenses committed on or after that date.

ARTICLE 18. Venue; Petition; Summons.

Sec.

§ 7B-1800. Venue.

  1. A proceeding in which a juvenile is alleged to be delinquent or undisciplined shall be commenced and adjudicated in the district in which the offense is alleged to have occurred. When a proceeding is commenced in a district other than that of the juvenile's residence, the court shall proceed to adjudication in that district and, if the juvenile is in residential treatment or foster care in that district, the court shall conduct the dispositional hearing in that district as well, unless the judge enters an order, supported by findings of fact, that a transfer would serve the ends of justice or is in the best interests of the juvenile.
  2. Except as provided in subsection (a) of this section, after adjudication, the following procedures shall be available to the court:
    1. The court may transfer the proceeding to the court in the district where the juvenile resides for disposition.
    2. Where the proceeding is not transferred under subdivision (1) of this section, the court shall immediately notify the chief district court judge in the district in which the juvenile resides. If the chief district court judge requests a transfer within five days after receipt of notification, the court shall transfer the proceeding.
    3. Where the proceeding is not transferred under subdivision (1) or (2) of this section, the court, upon motion of the juvenile, shall transfer the proceeding to the court in the district where the juvenile resides for disposition. The court shall advise the juvenile of the juvenile's right to transfer under this section.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2004-155, s. 1.)

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

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 empirical study, "The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System," see 40 Wake Forest L. Rev. 727 (2005).

§ 7B-1801. Pleading and process.

The pleading in a juvenile action is the petition. The process in a juvenile action is the summons.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

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.

Fatal Variance Between Juvenile Petition and Evidence. - There was a fatal variance between the juvenile petition and the evidence where the petition, which charged a first-degree sexual offense based on the parties' ages, was fatally defective because it did not allege the ages of the victim and the juvenile. In re Griffin, 162 N.C. App. 487, 592 S.E.2d 12 (2004).

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).

Trial court did not have jurisdiction over a juvenile petition because the petition was not filed in the office of the clerk of superior court until more than thirty days after receipt of the complaint and thus was untimely pursuant to G.S. 7B-1703; the timely filing of a petition seeking judicial action was jurisdictional. In re J.B., 186 N.C. App. 301, 650 S.E.2d 457 (2007).

Cited in In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).


§ 7B-1802. Petition.

The petition shall contain the name, date of birth, and address of the juvenile and the name and last known address of the juvenile's parent, guardian, or custodian. The petition shall allege the facts that invoke jurisdiction over the juvenile. The petition shall not contain information on more than one juvenile.

A petition in which delinquency is alleged shall contain a plain and concise statement, without allegations of an evidentiary nature, asserting facts supporting every element of a criminal offense and the juvenile's commission thereof with sufficient precision clearly to apprise the juvenile of the conduct which is the subject of the allegation.

Sufficient copies of the petition shall be prepared so that copies will be available for the juvenile, for each parent if living separate and apart, for the guardian or custodian if any, for the juvenile court counselor, for the prosecutor, and for any person determined by the court to be a necessary party.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 9; 1998-202, s. 6; 2001-490, s. 2.10.)

CASE NOTES

Fatal Variance Between Juvenile Petition and Evidence. - There was a fatal variance between the juvenile petition and the evidence where the petition, which charged a first-degree sexual offense based on the parties' ages, was fatally defective because it did not allege the ages of the victim and the juvenile. In re Griffin, 162 N.C. App. 487, 592 S.E.2d 12 (2004).

Fatal Defect in Offense Charged - Since there is no statute included in the North Carolina General Statutes for assault with a deadly weapon with intent to inflict serious injury, the offense listed on the juvenile petition, there was no crime listed on the petition and the petition was fatally defective. In re R.P.M., 172 N.C. App. 782, 616 S.E.2d 627 (2005).

Cited in In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).


§ 7B-1803. Receipt of complaints; filing of petition.

  1. All complaints concerning a juvenile alleged to be delinquent or undisciplined shall be referred to the juvenile court counselor for screening and evaluation. Thereafter, if the juvenile court counselor determines that a petition should be filed, the petition shall be drawn by the juvenile court counselor or the clerk, signed by the complainant, and verified before an official authorized to administer oaths. If the circumstances indicate a need for immediate attachment of jurisdiction and if the juvenile court counselor is out of the county or otherwise unavailable to receive a complaint and to draw a petition when it is needed, the clerk shall assist the complainant in communicating the complaint to the juvenile court counselor by telephone and, with the approval of the juvenile court counselor, shall draw a petition and file it when signed and verified. A copy of the complaint and petition shall be transmitted to the juvenile court counselor.
  2. If review is requested pursuant to G.S. 7B-1704, the prosecutor shall review a complaint and any decision of the juvenile court counselor not to authorize that the complaint be filed as a petition. If the prosecutor, after review, authorizes a complaint to be filed as a petition, the prosecutor shall prepare the complaint to be filed by the clerk as a petition, recording the day of filing.

History

(1979, c. 815, s. 1; 1981, c. 469, ss. 10, 11; 1998-202, s. 6; 2001-490, s. 2.11; 2012-172, s. 1.)

Effect of Amendments. - Session Laws 2012-172, s. 1, effective July 12, 2012, deleted the last sentence of subsection (a), which formerly read: "Procedures for receiving delinquency and undisciplined complaints and drawing petitions thereon, consistent with this Article and Article 17 of this Chapter, shall be established by administrative order of the chief judge in each judicial district."

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. - 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).

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).


§ 7B-1804. Commencement of action.

  1. An action is commenced by the filing of a petition in the clerk's office when that office is open, or by a magistrate's acceptance of a petition for filing pursuant to subsection (b) of this section when the clerk's office is closed.
  2. When the office of the clerk is closed and the juvenile court counselor requests a petition alleging a juvenile to be delinquent or undisciplined, a magistrate may draw and verify the petition and accept it for filing, which acceptance shall constitute filing. The magistrate's authority under this subsection is limited to emergency situations when a petition is required in order to obtain a secure or nonsecure custody order. Any petition accepted for filing under this subsection 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; 2001-490, s. 2.12.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Timely Filing Jurisdictional. - Trial court did not have jurisdiction over a juvenile petition because the petition was not filed in the office of the clerk of superior court until more than thirty days after receipt of the complaint and thus was untimely pursuant to G.S. 7B-1703; the timely filing of a petition seeking judicial action was jurisdictional. In re J.B., 186 N.C. App. 301, 650 S.E.2d 457 (2007).

Cited in In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010).


§ 7B-1805. Issuance of summons.

  1. Immediately after a petition has been filed alleging that a juvenile is undisciplined or delinquent, the clerk shall issue a summons to the juvenile and to the parent, guardian, or custodian 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.
  2. A summons shall be on a printed form supplied by the Administrative Office of the Courts and shall include:
    1. Notice of the nature of the proceeding and the purpose of the hearing scheduled on the summons.
    2. Notice of any right to counsel and information about how to seek the appointment of counsel prior to a hearing.
    3. Notice that, if the court determines at the adjudicatory hearing that the allegations of the petition are true, the court will conduct a dispositional hearing and will have jurisdiction to enter orders affecting substantial rights of the juvenile and of the parent, guardian, or custodian, including orders that:
      1. Affect the juvenile's custody;
      2. Impose conditions on the juvenile;
      3. Require that the juvenile receive medical, psychiatric, psychological, or other treatment and that the parent participate in the treatment;
      4. Require the parent to undergo psychiatric, psychological, or other treatment or counseling;
      5. Order the parent to pay for treatment that is ordered for the juvenile or the parent; and
      6. Order the parent to pay support for the juvenile for any period the juvenile does not reside with the parent or to pay attorneys' fees or other fees or expenses as ordered by the court.
    4. Notice that the parent, guardian, or custodian shall be required to attend scheduled hearings and that failure without reasonable cause to attend may result in proceedings for contempt of court.
    5. Notice that the parent, guardian, or custodian shall be responsible for bringing the juvenile before the court at any hearing the juvenile is required to attend and that failure without reasonable cause to bring the juvenile before the court may result in proceedings for contempt of court.
  3. The summons shall advise the parent, guardian, or custodian that upon service, jurisdiction over the parent, guardian, or custodian is obtained and that failure of the parent, guardian, or custodian to appear or bring the juvenile before the court without reasonable cause or to comply with any order of the court pursuant to Article 27 of this Chapter may cause the court to issue a show cause order for contempt. The summons shall contain the following language in bold type:
  4. A summons shall be directed to the person summoned to appear and shall be delivered to any person authorized to serve process.

"TO THE PARENT(S), GUARDIAN(S), OR CUSTODIAN(S): YOUR FAILURE TO APPEAR IN COURT FOR A SCHEDULED HEARING OR TO COMPLY WITH AN ORDER OF THE COURT MAY RESULT IN A FINDING OF CRIMINAL CONTEMPT. A PERSON HELD IN CRIMINAL CONTEMPT MAY BE SUBJECT TO IMPRISONMENT OF UP TO 30 DAYS, A FINE NOT TO EXCEED FIVE HUNDRED DOLLARS ($500.00) OR BOTH."

History

(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 2; 1995, c. 328, s. 1; 1998-202, s. 6.)

CASE NOTES

Editor's Note. - The following case was 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).


§ 7B-1806. Service of summons.

The summons and petition shall be personally served upon the parent, the guardian, or custodian and the juvenile 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 the parent, guardian, or custodian entitled to receive a summons cannot be found by a diligent effort, the court may authorize service of the summons and petition by mail or by publication. 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.

The court may issue a show cause order for contempt against a parent, guardian, or custodian who is personally served and fails without reasonable cause to appear and to bring the juvenile before the court.

The provisions of G.S. 15A-301(a), (c), (d), and (e) relating to criminal process apply to juvenile process; provided the period of time for return of an unserved summons is 30 days.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

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. - Some 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).

Trial Court Properly Exercised Personal Jurisdiction over Juvenile. - Trial court properly exercised personal jurisdiction over the juvenile on a simple assault petition, as the juvenile's and the juvenile's parent's presence at the hearing on that petition as well as the juvenile's participation in the hearing without objection constituted a general appearance for the purposes of waiving any defect in service. In re Hodge, 153 N.C. App. 102, 568 S.E.2d 878 (2002).

Trial court did not lack personal jurisdiction over defendant juvenile even though service of process was not made five days prior to the hearing as required by G.S. 7B-1806, where neither defendant nor his counsel contested service of process or personal jurisdiction at any of the numerous hearings they participated in. In re D.S.B., 179 N.C. App. 577, 634 S.E.2d 633 (2006).

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 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 D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).


§ 7B-1807. Notice to parent and juvenile of scheduled hearings.

The clerk shall give to all parties, including both parents of the juvenile, the juvenile's guardian or custodian, and any other person who has assumed the status and obligation of a parent without being awarded legal custody of the juvenile by a court, five days' written notice of the date and time of all scheduled hearings unless the party is notified in open court or the court orders otherwise.

History

(1998-202, s. 6.)

CASE NOTES

Cited in In re May, 153 N.C. App. 299, 569 S.E.2d 704 (2002), aff'd, 357 N.C. 423, 584 S.E.2d 271 (2003).


§ 7B-1808. First appearance for felony cases.

  1. A juvenile who is alleged in the petition to have committed an offense that would be a felony if committed by an adult shall be summoned to appear before the court for a first appearance within 10 days of the filing of the petition. If the juvenile is in secure or nonsecure custody, the first appearance shall take place at the initial hearing required by G.S. 7B-1906. Unless the juvenile is in secure or nonsecure custody, the court may continue the first appearance to a time certain for good cause.
  2. At the first appearance, the court shall:
    1. Inform the juvenile of the allegations set forth in the petition;
    2. Determine whether the juvenile has retained counsel or has been assigned counsel;
    3. If applicable, inform the juvenile of the date of the probable cause hearing, which shall be within 15 days of the first appearance; and
    4. Inform the parent, guardian, or custodian that the parent, guardian, or custodian is required to attend all hearings scheduled in the matter and may be held in contempt of court for failure to attend any scheduled hearing.

If the juvenile is not represented by counsel, counsel for the juvenile shall be appointed in accordance with rules adopted by the Office of Indigent Services.

History

(1998-202, s. 6; 2000-144, s. 20; 2001-487, s. 4.)

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.


ARTICLE 19. Temporary Custody; Secure and Nonsecure Custody; Custody Hearings.

Sec.

§ 7B-1900. Taking a juvenile into temporary custody.

Temporary custody means the taking of physical custody and providing personal care and supervision until a court order for secure or nonsecure custody can be obtained. A juvenile may be taken into temporary custody without a court order under the following circumstances:

  1. By a law enforcement officer if grounds exist for the arrest of an adult in identical circumstances under G.S. 15A-401(b).
  2. By a law enforcement officer or a juvenile court counselor if there are reasonable grounds to believe that the juvenile is an undisciplined juvenile.
  3. By a law enforcement officer, by a juvenile court counselor, by a member of the Black Mountain Center, Alcohol Rehabilitation Center, and Juvenile Evaluation Center Joint Security Force established pursuant to G.S. 122C-421, or by personnel of the Division if there are reasonable grounds to believe the juvenile is an absconder from any residential facility operated by the Division or from an approved detention facility.

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; 2000-137, s. 3; 2001-490, s. 2.13; 2011-145, s. 19.1( l ).)

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" both times it appears in subdivision (3).

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 empirical study, "The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System," see 40 Wake Forest L. Rev. 727 (2005).

For article, "You're Only as 'Free to Leave' as You Feel: Police Encounters with Juveniles and the Trouble with Differential Standards for Investigatory Stops Under In re I.R.T," see 88 N.C.L. Rev. 1389 (2010).

CASE NOTES

Editor's Note. - One of the following cases was decided prior to the enactment of this Chapter.

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).

Applied in In re V.C.R., 227 N.C. App. 80, 742 S.E.2d 566 (2013).


§ 7B-1901. Duties of person taking juvenile into temporary custody.

  1. A person who takes a juvenile into custody without a court order under G.S. 7B-1900(1) or (2) shall proceed as follows:
    1. Notify the juvenile's parent, guardian, or custodian that the juvenile has been taken into temporary custody and advise the parent, guardian, or custodian of the right to be present with the juvenile until a determination is made as to the need for secure or nonsecure custody. Failure to notify the parent, guardian, or custodian that the juvenile is in custody shall not be grounds for release of the juvenile.
    2. Release the juvenile to the juvenile's parent, guardian, or custodian if the person having the juvenile in temporary custody decides that continued custody is unnecessary. In the case of a juvenile unlawfully absent from school, if continued custody is unnecessary, the person having temporary custody may deliver the juvenile to the juvenile's school or, if the local city or county government and the local school board adopt a policy, to a place in the local school administrative unit.
    3. If the juvenile is not released, request that a petition be drawn pursuant to G.S. 7B-1803 or G.S. 7B-1804. Once the petition has been drawn and verified, the person shall communicate with the juvenile court counselor. If the juvenile court counselor approves the filing of the petition, the juvenile court counselor shall contact the judge or the person delegated authority pursuant to G.S. 7B-1902 if other than the juvenile court counselor, for a determination of the need for continued custody.
  2. 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 and an order for secure or nonsecure custody has been entered.
  3. A person who takes a juvenile into custody under G.S. 7B-1900(3), after receiving an order for secure custody, shall transport the juvenile to the nearest approved facility providing secure custody. The person then shall contact the administrator of the facility from which the juvenile absconded, who shall be responsible for returning the juvenile to that facility.
  4. A person who takes an individual who is 21 years of age or older into temporary custody for an offense committed when the individual was a juvenile shall proceed in accordance with this Chapter. If, pursuant to the criteria in G.S. 7B-1903(b), secure custody is ordered for any person 21 years of age or older who falls within the jurisdiction of the court, pursuant to G.S. 7B-1601(d) or G.S. 7B-1601(d1), the order shall designate that the person be temporarily detained in the county jail where the charges arose.

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; 2001-490, s. 2.14; 2019-186, s. 4.)

Editor's Note. - Session Laws 2019-186, s. 12, made subsection (d), as added by Session Laws 2019-186, s. 4, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2019-186, s. 4, added subsection (d). For effective date and applicability, see editor's note.

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

Applied in In re V.C.R., 227 N.C. App. 80, 742 S.E.2d 566 (2013).


§ 7B-1902. Authority to issue custody orders; delegation.

In the case of any juvenile alleged to be within the jurisdiction of the court, when the court finds it necessary to place the juvenile in custody, the court may order that the juvenile be placed in secure or nonsecure custody pursuant to criteria set out in G.S. 7B-1903.

Any district court judge may issue secure and nonsecure custody orders pursuant to G.S. 7B-1903. The chief district court judge may delegate the court's authority to the chief court counselor or the chief court counselor's counseling staff by administrative order filed in the office of the clerk of superior court. The administrative order shall specify which persons may be contacted for approval of a secure or nonsecure custody order. The chief district court judge shall not delegate the court's authority to detain or house juveniles in holdover facilities pursuant to G.S. 7B-1905 or G.S. 7B-2513.

History

(1979, c. 815, s. 1; 1981, c. 425; 1983, c. 590, s. 1; 1998-202, s. 6.)

Editor's Note. - The reference in the second paragraph to G.S. 7B-2513 was substituted for G.S. 7B-2512 following its recodification at the direction of the Revisor of Statutes.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

§ 7B-1903. Criteria for secure or nonsecure custody.

  1. When a request is made for nonsecure custody, the court shall first consider release of the juvenile to the juvenile's parent, 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 that:
    1. The juvenile is a runaway and consents to nonsecure custody; or
    2. The juvenile meets one or more of the criteria for secure custody, but the court finds it in the best interests of the juvenile that the juvenile be placed in a nonsecure placement.
  2. When a request is made for secure custody, the court may order secure custody only where the court finds there is a reasonable factual basis to believe that the juvenile committed the offense as alleged in the petition, and that one of the following circumstances exists:
    1. The juvenile is charged with a felony and has demonstrated that the juvenile is a danger to property or persons.
    2. The juvenile has demonstrated that the juvenile is a danger to persons and is charged with either (i) a misdemeanor at least one element of which is assault on a person or (ii) a misdemeanor in which the juvenile used, threatened to use, or displayed a firearm or other deadly weapon.
    3. The juvenile has demonstrated that the juvenile is a danger to persons and is charged with a violation of G.S. 20-138.1 or G.S. 20-138.3.
    4. The juvenile has willfully failed to appear on a pending delinquency charge or on charges of violation of probation or post-release supervision, providing the juvenile was properly notified.
    5. A delinquency charge is pending against the juvenile, and there is reasonable cause to believe the juvenile will not appear in court.
    6. The juvenile is an absconder from (i) any residential facility operated by the Division or any detention facility in this State or (ii) any comparable facility in another state.
    7. There is reasonable cause to believe the juvenile should be detained for the juvenile's own protection because the juvenile has recently suffered or attempted self-inflicted physical injury. In such case, the juvenile must have been refused admission by one appropriate hospital, and the period of secure custody is limited to 24 hours to determine the need for inpatient hospitalization. If the juvenile is placed in secure custody, the juvenile shall receive continuous supervision and a physician shall be notified immediately.
    8. The juvenile is alleged to be undisciplined by virtue of the juvenile's being a runaway and is inappropriate for nonsecure custody placement or refuses nonsecure custody, and the court finds that the juvenile needs secure custody for up to 24 hours, excluding Saturdays, Sundays, and State holidays, to evaluate the juvenile's need for medical or psychiatric treatment or to facilitate reunion with the juvenile's parents, guardian, or custodian.
    9. The juvenile is alleged to be undisciplined and has willfully failed to appear in court after proper notice; the juvenile shall be brought to court as soon as possible and in no event should be held more than 24 hours, excluding Saturdays, Sundays, and State holidays.
  3. When a juvenile has been adjudicated delinquent, the court may order secure custody pending the dispositional hearing or pending placement of the juvenile pursuant to G.S. 7B-2506. As long as the juvenile remains in secure custody, further hearings to determine the need for continued secure custody shall be held at intervals of no more than 10 calendar days but may be waived for no more than 30 calendar days only with the consent of the juvenile, through counsel for the juvenile, either orally in open court or in writing. The order for continued secure custody shall be in writing with appropriate findings of fact.
  4. The court may order secure custody for a juvenile who is alleged to have violated the conditions of the juvenile's probation or post-release supervision, but only if the juvenile is alleged to have committed acts that damage property or injure persons.
  5. If the criteria for secure custody as set out in subsection (b), (c), or (d) of this section are met, the court may enter an order directing an officer or other authorized person to assume custody of the juvenile and to take the juvenile to the place designated in the order. If, pursuant to the criteria in subsection (b) of this section, secure custody is ordered for any person 18 years of age or older who falls within the jurisdiction of the court, pursuant to G.S. 7B-1601(d) or G.S. 7B-1601(d1), the order may designate that the person be temporarily detained in the county jail where the charges arose.
  6. If the court finds that there is a need for an evaluation of a juvenile for medical or psychiatric treatment pursuant to subsection (b) of this section and that juvenile is under 10 years of age and does not have a pending delinquency charge, the law enforcement officer or other authorized person assuming custody of the juvenile shall not use physical restraints during the transport of the juvenile to the place designated in the order, unless in the discretion of the officer or other authorized person, the restraints are reasonably necessary for the safety of the officer, authorized person, or the juvenile.

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; 2000-137, s. 3; 2001-158, s. 1; 2007-493, s. 31; 2011-145, s. 19.1( l ); 2012-172, s. 3; 2015-58, s. 3.1; 2019-186, s. 5.)

Editor's Note. - Session Laws 2015-58, s. 4, made the last two sentences in subsection (c) and subsection (f), as added by Session Laws 2015-58, s. 3.1, applicable to offenses committed on or after December 1, 2015.

Session Laws 2019-186, s. 12, made the second sentence of subsection (e) as added by Session Laws 2019-186, s. 5, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department."

Session Laws 2012-172, s. 3, effective October 1, 2012, deleted "or where circumstances require, for a period not to exceed 72 hours" following "Saturdays, Sundays, and State holidays" in subdivisions (b)(7) and (8) and made punctuation changes.

Session Laws 2015-58, s. 3.1, effective December 1, 2015, added the last two sentences in subsection (c); and added subsection (f). For applicability, see editor's note.

Session Laws 2019-186, s. 5, added the second sentence in subsection (e). For effective date and applicability, see editor's note.

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).

For article, "Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration: Race and Reform: A Missed Opportunity for Meaningful Impact and Potential Remedies," see 51 Wake Forest L. Rev. 545 (2016).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Secure Custody Not Authorized Solely for Alleged Probation Violation. - Subsection (c) of this section does not authorize issuance of a secure custody order for a juvenile who has previously been adjudicated delinquent simply because the juvenile is now alleged to have violated the terms of her probation. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

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).

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).

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).

Secure Custody Pending Disposition Proper. - Trial court properly ordered that a juvenile be confined to secure custody pending disposition pursuant to G.S. 7B-1903(c) because the juvenile had previously been adjudicated as delinquent, she admitted to subsequent probation violations, and the trial court had good cause to continue the dispositional hearing; when a juvenile has been previously adjudicated delinquent and admits violations of his or her probation at an adjudication hearing, the juvenile may be ordered into secure custody pending disposition pursuant to G.S. 7B-1903(c). In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449 (2009), rev'd 364 N.C. 214 (2010).

Secure Custody Pending Transfer to Out-of-Home Placement Proper. - Trial court had ample justification for its decision to hold the juvenile in secure custody pending his transfer to an out-of-home placement because the juvenile had been adjudicated delinquent by the trial court and had been found to be in violation of the terms and conditions of his probation; the juvenile had been suspended from school, had anger-related difficulties, and had disobedience problems while living at home; and, if the juvenile was kept in secure custody, the juvenile would go to school, get an education, and receive any medication and treatment he needed. In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014).

Juvenile Entitled to Hearing at Intervals of No More Than Ten Calendar Days. - Trial court erred by failing to entertain a juvenile's motion to review an order of secure custody under G.S. 7B-1906(b); because G.S. 7B-1903 provides for secure custody during both pre-adjudication and post-adjudication, pending disposition, there is no reason that G.S. 7B-1906(b) hearings should be limited to pre-adjudication confinement, and a juvenile confined to secure custody pending disposition or placement is entitled to a hearing at intervals of no more than ten calendar days to determine whether continued secure custody is warranted. In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449 (2009), rev'd 364 N.C. 214 (2010).

Cited in In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).


§ 7B-1904. Order for secure or nonsecure custody.

The custody order shall be in writing and shall direct a law enforcement officer or other authorized person to assume custody of the juvenile and to make due return on the order. The official executing the order shall give a copy of the order to the juvenile's parent, guardian, or custodian. If the order is for nonsecure custody, the official executing the order shall also give a copy of the petition and order to the person or agency with whom the juvenile is being placed. If the order is for secure custody, copies of the petition and custody order shall accompany the juvenile to the detention facility or holdover facility of the jail. A message of the Department of Public Safety stating that a juvenile petition and secure custody order relating to a specified juvenile are on file in a particular county shall be authority to detain the juvenile in secure custody until a copy of the juvenile petition and secure custody order can be forwarded to the juvenile detention facility. The copies of the juvenile petition and secure custody order shall be transmitted to the detention facility no later than 72 hours after the initial detention of the juvenile.

An officer receiving an order for custody which is complete and regular on its face may execute it in accordance with its terms and need not inquire into its regularity or continued validity, nor does the officer incur criminal or civil liability for its execution.

History

(1979, c. 815, s. 1; 1989, c. 124; 1998-202, s. 6; 2009-311, s. 15; 2014-100, s. 17.1(t).)

Effect of Amendments. - Session Laws 2009-311, s. 15, effective October 1, 2009, added the third sentence in the first paragraph.

Session Laws 2014-100, s. 17.1(t), effective July 1, 2014, substituted "the Department of Public Safety" for "the Division of Criminal Information, State Bureau of Investigation" in the fifth sentence.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

§ 7B-1905. Place of secure or nonsecure custody.

  1. A juvenile meeting the criteria set out in G.S. 7B-1903(a), may be placed in nonsecure custody with a department of social services or a person designated in the order for temporary residential placement in:
    1. A licensed foster home or a home otherwise authorized by law to provide such care;
    2. A facility operated by a department of social services; or
    3. Any other home or facility approved by the court and designated in the order.
  2. Pursuant to G.S. 7B-1903(b), (c), or (d), a juvenile may be temporarily detained in an approved detention facility. It shall be unlawful for a sheriff or any unit of government to operate a juvenile detention facility unless the facility meets the standards and rules adopted by the Department of Public Safety and has been approved by the Juvenile Justice Section of the Division for operation as a juvenile detention facility.
  3. A juvenile who has allegedly committed an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult may be detained in secure custody in a holdover facility up to 72 hours, if the court, based on information provided by the juvenile court counselor, determines that no acceptable alternative placement is available and the protection of the public requires the juvenile be housed in a holdover facility.
  4. If, pursuant to the criteria in G.S. 7B-1903(b), secure custody is ordered for any person 18 years of age or older who falls within the jurisdiction of the court, pursuant to G.S. 7B-1601(d) or G.S. 7B-1601(d1), the person may be temporarily detained in the county jail where the charges arose.

In placing a juvenile in nonsecure custody, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile. If the court finds that the relative is willing and able to provide proper care and supervision, 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 interest of the juvenile. Placement of a juvenile outside of this State shall be in accordance with the Interstate Compact on the Placement of Children set forth in 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, s. 3; 1999-423, s. 14; 2001-490, s. 2.15; 2012-172, s. 4; 2019-186, s. 6.)

Editor's Note. - Session Laws 2019-186, s. 12, made the amendment of this section by Session Laws 2019-186, s. 6, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2012-172, s. 4, effective January 1, 2013, substituted "Department of Public Safety" for "Department of Health and Human Services" at the end of subsection (b).

Session Laws 2019-186, s. 6, rewrote subsection (b), which formerly read: "Pursuant to G.S. 7B-1903(b), (c), or (d), a juvenile may be temporarily detained in an approved detention facility which shall be separate from any jail, lockup, prison, or other adult penal institution, except as provided in subsection (c) of this section. It shall be unlawful for a county or any unit of government to operate a juvenile detention facility unless the facility meets the standards and rules adopted by the Department of Public Safety"; and added subsection (d). For effective date and 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. - The following case was decided prior to the enactment of this Chapter.

The trial court had jurisdiction to enter a temporary nonsecure custody order 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. 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).


§ 7B-1906. Secure or nonsecure custody hearings.

  1. No juvenile shall be held under a secure custody order for more than five calendar days or under a nonsecure custody order for more than seven calendar days without a hearing on the merits or an initial hearing to determine the need for continued custody. A hearing conducted under this subsection may not be continued or waived. In every case in which an order has been entered by an official exercising authority delegated pursuant to G.S. 7B-1902, 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 the session precedes the expiration of the applicable time period set forth in this subsection. If the 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.
  2. As long as the juvenile remains in secure or nonsecure custody, further hearings to determine the need for continued secure custody shall be held at intervals of no more than 10 calendar days, except as otherwise provided in this section. A subsequent hearing on continued nonsecure custody shall be held within seven business days, excluding Saturdays, Sundays, and legal holidays when the courthouse is closed for transactions, of the initial hearing required in subsection (a) of this section and hearings thereafter shall be held at intervals of no more than 30 calendar days. In the case of a juvenile alleged to be delinquent, further hearings may be waived only with the consent of the juvenile, through counsel for the juvenile.
  3. For a juvenile who was 16 years of age or older at the time the juvenile allegedly committed an offense that would be a Class A, B1, B2, C, D, E, F, or G felony if committed by an adult, further hearings to determine the need for secure custody shall be held at intervals of no more than 30 calendar days. Further hearings may be waived only with the consent of the juvenile, through counsel for the juvenile. Upon request of the juvenile, through counsel for the juvenile, and for good cause as determined by the court, further hearings to determine the need for secure custody may be held at intervals of 10 days.
  4. The court shall determine whether a juvenile who is alleged to be delinquent has retained counsel or has been assigned counsel; if the juvenile is not represented by counsel, counsel for the juvenile shall be appointed in accordance with rules adopted by the Office of Indigent Defense Services.
  5. At a hearing to determine the need for continued custody, the court shall receive testimony and shall allow the juvenile and the juvenile's parent, guardian, or custodian an opportunity to introduce evidence, to be heard in their own behalf, and to examine witnesses. The State shall bear the burden at every stage of the proceedings to provide clear and convincing evidence that restraints on the juvenile's liberty are necessary and that no less intrusive alternative will suffice. The court shall not be bound by the usual rules of evidence at the hearings.
  6. The court shall be bound by criteria set forth in G.S. 7B-1903 in determining whether continued custody is warranted.
  7. The court may impose appropriate restrictions on the liberty of a juvenile who is released from secure custody, including:
    1. Release on the written promise of the juvenile's parent, guardian, or custodian to produce the juvenile in court for subsequent proceedings;
    2. Release into the care of a responsible person or organization;
    3. Release conditioned on restrictions on activities, associations, residence, or travel if reasonably related to securing the juvenile's presence in court; or
    4. Any other conditions reasonably related to securing the juvenile's presence in court.
  8. If the court determines that the juvenile meets the criteria in G.S. 7B-1903 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. The findings of fact shall include the evidence relied upon in reaching the decision and the purposes which continued custody is to achieve.
  9. Repealed by Session Laws 2021-47, s. 10(a), effective June 18, 2021, and applicable to proceedings occurring on or after that date.

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; 2000-144, s. 21; 2003-337, s. 10; 2019-186, s. 7; 2021-47, s. 10(a).)

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

Editor's Note. - Session Laws 2019-186, s. 12, made the amendment of subsection (b) and addition of subsection (b1) by Session Laws 2019-186, s. 7, effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2021-47, s. 10(m), made the deletion of subsection (h) of this section by Session Laws 2021-47, s. 10(a), effective June 18, 2021, and applicable to proceedings occurring on or after that date.

Effect of Amendments. - Session Laws 2019-186, s. 7, substituted "days, except as otherwise provided in this section" for "days" in subsection (b); and added subsection (b1). For effective date and applicability, see editor's note.

Session Laws 2021-47, s. 10(a), deleted subsection (h). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For article, "Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration: Race and Reform: A Missed Opportunity for Meaningful Impact and Potential Remedies," see 51 Wake Forest L. Rev. 545 (2016).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Statute Inapplicable. - Because this statute applies when the trial court holds a hearing to determine whether to continue a juvenile's secure custody following an initial accusation of delinquency rather than when the trial court orders that a juvenile be held in secure custody pending the effectuation of a legally authorized out-of-home placement, this statute was not applicable to the trial court's decision that the juvenile be held in secure custody pending his transfer to an out-of-home placement. In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014).

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).

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).

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).

Juvenile Entitled to Hearing at Intervals of No More Than Ten Calendar Days. - Trial court erred by failing to entertain a juvenile's motion to review an order of secure custody under G.S. 7B-1906(b); because G.S. 7B-1903 provides for secure custody during both pre-adjudication and post-adjudication, pending disposition, there is no reason that G.S. 7B-1906(b) hearings should be limited to pre-adjudication confinement, and a juvenile confined to secure custody pending disposition or placement is entitled to a hearing at intervals of no more than ten calendar days to determine whether continued secure custody is warranted. In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449 (2009), rev'd 364 N.C. 214 (2010).


§ 7B-1907. Telephonic communication authorized.

All communications, notices, orders, authorizations, and requests authorized or required by G.S. 7B-1901, 7B-1903, and 7B-1904 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; 1998-202, s. 6.)

ARTICLE 20. Basic Rights.

Sec.

§ 7B-2000. Juvenile's right to counsel; presumption of indigence.

  1. A juvenile alleged to be within the jurisdiction of the court has the right to be represented by counsel in all proceedings. Counsel for the juvenile shall be appointed in accordance with rules adopted by the Office of Indigent Defense Services, unless counsel is retained for the juvenile, in any proceeding in which the juvenile is alleged to be (i) delinquent or (ii) in contempt of court when alleged or adjudicated to be undisciplined.
  2. All juveniles shall be conclusively presumed to be indigent, and it shall not be necessary for the court to receive from any juvenile an affidavit of indigency.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2000-144, s. 22.)

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

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 rights and interests of parent, child, family and state, see 4 Campbell L. Rev. 85 (1981).

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

A juvenile appellant is presumed indigent. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Cited in In re C.W.N., 227 N.C. App. 63, 742 S.E.2d 583 (2013).


§ 7B-2001. Appointment of guardian.

In any case when no parent, guardian, or custodian 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. Unless the court orders otherwise, the guardian:

  1. Shall have the care, custody, and control of the juvenile or may arrange a suitable placement for the juvenile.
  2. May represent the juvenile in legal actions before any court.
  3. May consent to certain actions on the part of the juvenile in place of the parent or custodian, including (i) marriage, (ii) enlisting in the Armed Forces of the United States, and (iii) enrollment in school.
  4. May 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 Subchapter IV of this Chapter, or until the juvenile reaches the age of majority.

History

(1979, c. 815, s. 1; 1997-390, s. 7; 1998-202, s. 6; 2011-183, s. 5.)

Effect of Amendments. - Session Laws 2011-183, s. 5, effective June 20, 2011, substituted "Armed Forces of the United States" for "armed forces" in subdivision (3).

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

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).


§ 7B-2002. Payment of court-appointed attorney.

An attorney appointed pursuant to G.S. 7B-2000 or pursuant to any other provision of this Subchapter 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 attorneys' fees from a person other than the juvenile as provided in G.S. 7A-450.1, 7A-450.2, and 7A-450.3. A person who does not comply with the court's order of payment may be found in civil contempt as provided in G.S. 5A-21.

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; 2000-144, s. 23.)

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.


ARTICLE 20A. Rights of Victims of Delinquent Acts.

Sec.

§ 7B-2051. Definitions.

  1. The following definitions apply in this Article:
    1. Court proceeding. - Any open hearing authorized or required by this Subchapter and any closed hearing or portion of a closed hearing in which the victim, in accordance with G.S. 7B-2402, is permitted to be present. The term shall not include the first appearance described in G.S. 7B-1808 if the juvenile is in secure or nonsecure custody. If it is known by the juvenile court counselor and the district attorney's office that (i) the juvenile and the victim have a personal relationship as defined in G.S. 50B-1(b) and (ii) the hearing may result in the juvenile's release from custody, efforts will be made to contact the victim.
    2. Family member. - A spouse, child, parent, guardian, legal custodian, sibling, or grandparent of the victim. The term does not include the accused.
    3. Felony property offense. - An offense that, if committed by an adult, would constitute a felony violation of one of the following:
      1. Subchapter IV of Chapter 14 of the General Statutes.
      2. Subchapter V of Chapter 14 of the General Statutes.
    4. Offense against the person. - An offense against or involving the person of the victim that, if committed by an adult, would constitute a violation of one of the following:
      1. Subchapter III of Chapter 14 of the General Statutes.
      2. Subchapter VII of Chapter 14 of the General Statutes.
      3. Article 39 of Chapter 14 of the General Statutes.
      4. Chapter 20 of the General Statutes, if an element of the act of delinquency involves impairment of the defendant, or injury or death to the victim.
      5. A valid protective order under G.S. 50B-4.1, including, but not limited to, G.S. 14-134.3 and G.S. 14-269.8.
      6. Article 35 of Chapter 14 of the General Statutes, if the elements of the act of delinquency involve communicating a threat or stalking.
      7. An offense that triggers the enumerated victims' rights, as required by the North Carolina Constitution.
    5. Victim. - A person against whom there is probable cause to believe a juvenile has committed an offense against the person or a felony property offense.
  2. If the victim is a minor or is legally incapacitated, a parent, guardian, or legal custodian may assert the victim's rights under this Article. The accused may not assert the victim's right. If the victim is deceased, then a family member, in the order set forth in the definition contained in this section, may assert the victim's rights under this Article, with the following limitations:
    1. The guardian or legal custodian of a deceased minor has priority over a family member.
    2. The right contained in G.S. 15A-834 may only be exercised by the personal representative of the victim's estate.
  3. An individual entitled to exercise the victim's rights as the appropriate family member in accordance with this section may designate any family member to act on behalf of the victim.
  4. An individual who, in the determination of the district attorney's office, would not act in the best interests of the victim shall not be entitled to assert or exercise the victim's rights. An individual may petition the court to review this determination by the district attorney's office.

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 16.5, provides: "The Administrative Office of the Courts shall, in consultation with the Conference of District Attorneys, develop procedures to automate the court date notifications required by this act."

Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

§ 7B-2052. Victim's rights.

  1. A victim of a juvenile offense shall be treated with dignity and respect by the juvenile justice system.
  2. A victim has the following rights:
    1. The right, upon request, to reasonable, accurate, and timely notice of court proceedings of the juvenile.
    2. The right, upon request, to be present at court proceedings of the juvenile.
    3. The right to be reasonably heard at court proceedings involving the adjudication, disposition, or release of the juvenile.
    4. The right to receive restitution in a reasonably timely manner, when ordered by the court.
    5. The right to be given information about the offense, how the juvenile justice system works, the rights of victims, and the availability of services for victims.
    6. The right, upon request, to receive information about the adjudication of the juvenile or disposition of the case.
    7. The right, upon request, to receive notification of the escape or release of the juvenile.
    8. The right to reasonably confer with the district attorney's office.
  3. This Article does not create a claim for damages against the State, any county or municipality, or any State or county agencies, instrumentalities, officers, or employees.

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 16.5, provides: "The Administrative Office of the Courts shall, in consultation with the Conference of District Attorneys, develop procedures to automate the court date notifications required by this act."

Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

§ 7B-2053. Responsibilities of the district attorney's office.

  1. Within 72 hours of the filing of a petition, the district attorney's office shall provide the victim with the following information:
    1. The victim's rights under this Article, including the right to reasonably confer with the district attorney's office.
    2. The responsibilities of the district attorney's office under this Article.
    3. The steps generally taken by the district attorney's office in cases involving juvenile offenses.
    4. Suggestions on what the victim should do if threatened or intimidated by the juvenile or someone acting on the juvenile's behalf.
    5. The name and telephone number of a victim and witness assistant in the district attorney's office whom the victim may contact for further information.
    6. A list of each right enumerated under G.S. 7B-2052(b).
    7. Information about any other rights afforded to victims by law.
  2. On a form provided by the district attorney's office for this purpose, the victim shall indicate whether the victim requests to receive notices of some, all, or none of the court proceedings included under this Article. The form shall also indicate whether the victim wishes to receive information about the adjudication and disposition of the case. If the victim elects to receive notices or information by requesting it on the form provided, the victim shall be responsible for notifying the district attorney's office of any changes in the victim's address and telephone number or other contact information. The victim may alter the request for notification or information at any time by notifying the district attorney's office and completing the form provided by the district attorney's office.
  3. The district attorney's office shall make every effort to ensure that a victim's personal information is not disclosed unless otherwise required by law. The district attorney's office shall inform the victim that personal information such as the victim's telephone number, home address, and bank account number are not relevant in every case, and that the victim may request the district attorney to object to that line of questioning when appropriate.
  4. The district attorney's office shall offer the victim the opportunity to reasonably confer with an attorney in the district attorney's office to obtain the views of the victim about, at a minimum, dismissal, plea or negotiations, disposition, and any dispositional alternatives.
  5. Notwithstanding Articles 30 and 31 of Subchapter III of this Chapter, the district attorney's office shall notify the victim of the date, time, and place of court proceedings as requested by the victim under subsection (b) of this section. All notices required to be given by the district attorney's office shall be reasonable, accurate, and timely and shall be given in a manner that is reasonably calculated to be received by the victim prior to the date of the court proceeding. The district attorney's office shall consider all hearings open, pursuant to G.S. 7B-2402, for the purpose of providing notice to the victim. The district attorney shall inform the victim if the entire hearing has been closed to the victim by the court. The district attorney's office may provide the required notification electronically or by telephone, unless the victim requests otherwise. The notifications required by this section shall be documented by the district attorney's office.
  6. Whenever practical, the district attorney's office shall provide a secure waiting area during court proceedings that does not place the victim in close proximity to the juvenile or the juvenile's family.
  7. Prior to the dispositional hearing, the district attorney's office shall notify the victim that the victim may request in writing to be notified (i) in advance of the juvenile's scheduled release date, if the juvenile is committed to the Division for placement in a youth development center or (ii) in the event that the juvenile escapes, if the juvenile is being held in secure custody or is committed to the Division for placement in a youth development center.
  8. At the dispositional hearing, the prosecutor shall submit to the court a form containing the victim's request for further notices under subsection (g) of this section and any necessary identifying information about the victim, if applicable. The chief court counselor shall include the form with the final disposition and commitment transmitted to the Division, and the form shall be maintained by the Division as a confidential file. The victim shall be responsible for notifying the Division of any changes in the victim's address and telephone number.
  9. Notwithstanding Articles 30 and 31 of Subchapter III of this Chapter, following the completion of the dispositional hearing, the district attorney's office shall provide the victim with information about the adjudication and disposition of the juvenile as requested by the victim pursuant to G.S. 7B-2053(b). The information provided shall be limited to (i) whether or not the juvenile was adjudicated delinquent, and if so, the offense classification, the dispositions available to the court as provided in G.S. 7B-2508, and (ii) no-contact orders as they relate to the victim, and (iii) any order for restitution.

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 16, provides: "No later than August 31, 2019, the Conference of District Attorneys and the Administrative Office of the Courts shall develop and disseminate the forms required by this act."

Session Laws 2019-216, s. 16.5, provides: "The Administrative Office of the Courts shall, in consultation with the Conference of District Attorneys, develop procedures to automate the court date notifications required by this act."

Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

§ 7B-2054. Responsibilities of judicial officials.

  1. In any court proceeding subject to this Article in which the victim may be present, the court shall inquire as to whether a victim is present and wishes to be heard and, if so, shall grant the victim an opportunity to be reasonably heard. The right to be reasonably heard may be exercised, at the victim's discretion, through an oral statement, submission of a written statement, or submission of an audio or video statement.
  2. In the event that an entire hearing has been closed to the victim by the court, the victim shall have the opportunity to be heard by the court regarding the right to be present, if the court has not previously provided this opportunity to the victim.
  3. A judge notified by the clerk of court that a victim has filed a motion alleging a violation of the rights provided in this Article shall review the motion. The judge involved in the proceeding that gave rise to the rights in question may, on the judge's own motion, recuse himself or herself if justice requires it, and report the recusal to the Administrative Office of the Courts. The judge, or a judge appointed by the Administrative Office of the Courts in the event of recusal, shall dispose of the motion or set the motion for hearing as required by G.S. 7B-2058.
  4. The court shall make every effort to provide a secure waiting area during court proceedings that does not place the victim in close proximity to the juvenile or the juvenile's family.

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

§ 7B-2055. Responsibilities of the Division of Adult Correction and Juvenile Justice.

  1. Notwithstanding Articles 30 and 31 of Subchapter III of this Chapter, if a victim has requested to be notified of the juvenile's release pursuant to G.S. 7B-2053, at least 45 days before releasing to post-release supervision a juvenile who was committed to the Division for placement in a youth development center, the Division shall notify the victim as requested. The notification shall include only the juvenile's initials, offense, date of commitment, projected release date, and any no-contact release conditions related to the victim.
  2. When determining whether a juvenile is ready for release pursuant to G.S. 7B-2514, the Division shall provide the victim an opportunity to be reasonably heard by the Division and shall consider the victim's views regarding release of the juvenile. If the Division determines that the juvenile is ready for release, the victim's views shall be considered during the post-release supervision planning conference process.
  3. Notwithstanding Articles 30 and 31 of Subchapter III of this Chapter, if a victim has requested in writing to be notified of the juvenile's escape pursuant to G.S. 7B-2053, within 24 hours of the time the juvenile escapes from a youth development center or from secure custody, the Division shall notify the victim. If, pursuant to G.S. 7B-3102, disclosure of information about the escaped juvenile will be released to the public, the Division may provide to the victim the same information that will be released to the public, but the Division shall make a reasonable effort to notify the victim prior to releasing the information to the public. The Division shall notify the victim within 24 hours of the juvenile's return to custody, even if the juvenile is returned to custody before the notification of escape is required.
  4. When a form is included with the final disposition and commitment pursuant to G.S. 7B-2053(h), or when the victim has otherwise filed a written request for notification with the Division, the Division shall notify the victim of the procedure for alleging a failure of the Division to notify the victim as required by this section.

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

§ 7B-2056. Right to restitution.

A victim has the right to receive restitution when ordered by the court pursuant to G.S. 7B-2506(4) and G.S. 7B-2506(22).

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

§ 7B-2057. Confidentiality of a juvenile record.

No rights under this Article provide grounds for a victim to examine or obtain confidential juvenile records. In providing notice or information to any victim, no agency, department, or official shall permit a victim to examine or obtain copies of any part of the juvenile record. Except as provided in G.S. 7B-2055(c), any agency, department, or official that provides a victim written notice or information under this Article shall not identify the juvenile by name in the notice or information, but shall identify the juvenile by the juvenile's first and last initials only. This Article shall not be construed to require or permit disclosing to any victim any information contained in juvenile records except as specifically provided.

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

§ 7B-2058. Enforcement of rights.

  1. A victim may assert the rights provided in this Article pursuant to Section 37 of Article I of the North Carolina Constitution. In no event shall any underlying proceeding be subject to undue delay for the enforcement provided in this section. The procedure by which a victim may assert the rights provided under this Article shall be by motion to the court of jurisdiction. For the purposes of this section, the term "victim" includes the following individuals acting on behalf of the victim:
    1. The victim's attorney.
    2. The prosecutor, at the request of the victim.
    3. A parent, guardian, or legal custodian, if the victim is a minor or is legally incapacitated, as provided in G.S. 7B-2051.
    4. A family member, if the victim is deceased, as provided in G.S. 7B-2051.
  2. A victim may allege a violation of the rights provided in this Article by filing a motion with the office of the clerk of superior court. The motion must be filed within the same proceeding giving rise to the rights in question.
  3. If the motion involves an allegation that the district attorney failed to comply with the rights of a victim provided by this Article, the victim must first file a written complaint with the district attorney, to afford the district attorney an opportunity to resolve the issue stated in the written complaint in a timely manner.
  4. A victim has the right to consult with an attorney regarding an alleged violation of the rights provided in this Article, but the victim does not have the right to counsel provided by the State.
  5. The Administrative Office of the Courts shall create a form to serve as the motion to enable a victim to allege a violation of the rights provided in this Article. The form will indicate what specific right has allegedly been violated. The form will also provide the victim the opportunity to describe the substance of the alleged violation in detail. If the motion involves an allegation that the district attorney failed to comply with the rights of a victim provided in this Article, the victim must attach a copy of the written complaint previously filed with the district attorney as required by subsection (c) of the section.
  6. The clerk of superior court of each county shall provide the form necessary to enable a victim to allege a violation of the rights provided in this Article. No fees shall be assessed for the filing of this motion. A copy of the motion required in subsection (b) of this section shall be given to the prosecutor if other than the elected District Attorney, the elected District Attorney, and the judge involved in the criminal proceeding that gave rise to the rights in question.
  7. The judge shall review the motion and dispose of it or set it for hearing in a timely manner. Review may include conferring with the victim, the prosecutor if other than the District Attorney, and the District Attorney, in order to inquire as to compliance with this Article. At the conclusion of the review, the judge shall dispose of the motion or set the motion for hearing.
  8. If the judge fails to review the motion and dispose of it or set it for a hearing in a timely manner, a victim may petition the North Carolina Court of Appeals for a writ of mandamus. The petition shall be filed without unreasonable delay. The court for good cause shown may shorten the time for filing a response.
  9. The failure or inability of any person to provide a right or service under this Article, including a service provided through the Statewide Automated Victim Assistance and Notification System established by the Governor's Crime Commission, may not be used by a juvenile, by any other accused, or by any victim or family member of a victim, as a ground for relief in any criminal, juvenile, or other civil proceeding, except as provided in Section 37 of Article I of the North Carolina Constitution.

History

(2019-216, s. 10.)

Editor's Note. - Session Laws 2019-216, s. 16, provides: "No later than August 31, 2019, the Conference of District Attorneys and the Administrative Office of the Courts shall develop and disseminate the forms required by this act."

Session Laws 2019-216, s. 17, made this section effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

ARTICLE 21. Law Enforcement Procedures in Delinquency Proceedings.

Sec.

§ 7B-2100. Role of the law enforcement officer.

A law enforcement officer who takes a juvenile into temporary custody should select the most appropriate course of action to the situation, the needs of the juvenile, and the protection of the public safety. The officer may:

  1. Release the juvenile, with or without first counseling the juvenile;
  2. Release the juvenile to the juvenile's parent, guardian, or custodian;
  3. Refer the juvenile to community resources;
  4. Seek a petition; or
  5. Seek a petition and request a custody order.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

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 comment, "Negotiating Miller Madness: Why North Carolina Gets Juvenile Resentencing Right While Other States Drop the Ball," see 91 N.C. L. Rev. 2179 (2013).

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Showup. - The legislature did not intend to preclude the use of the showup in juvenile investigations without a court order. This technique serves the important law enforcement objective of efficiency and protects the juvenile from more intrusive identification techniques. In re Stallings, 318 N.C. 565, 350 S.E.2d 327 (1986), rehearing dismissed, 319 N.C. 669, 356 S.E.2d 339 (1987).


§ 7B-2101. Interrogation procedures.

  1. Any juvenile in custody must be advised prior to questioning:
    1. That the juvenile has a right to remain silent;
    2. That any statement the juvenile does make can be and may be used against the juvenile;
    3. That the juvenile has a right to have a parent, guardian, or custodian present during questioning; and
    4. That the juvenile has a right to consult with an attorney and that one will be appointed for the juvenile if the juvenile is not represented and wants representation.
  2. When the juvenile is less than 16 years of age, no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardian, custodian, or attorney. If an attorney is not present, the parent, guardian, or custodian as well as the juvenile must be advised of the juvenile's rights as set out in subsection (a) of this section; however, a parent, guardian, or custodian may not waive any right on behalf of the juvenile.
  3. If the juvenile indicates in any manner and at any stage of questioning pursuant to this section that the juvenile does not wish to be questioned further, the officer shall cease questioning.
  4. Before admitting into evidence any statement resulting from custodial interrogation, the court shall find that the juvenile knowingly, willingly, and understandingly waived the juvenile's rights.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2015-58, s. 1.1.)

Editor's Note. - Session Laws 2015-58, s. 4, made the substitution of "less than 16 years of age" for "less than 14 years of age" in the first sentence of subsection (b) of this section by Session Laws 2015-58, s. 1.1, applicable to offenses committed on or after December 1, 2015.

Effect of Amendments. - Session Laws 2015-58, s. 1.1, effective December 1, 2015, substituted "less than 16 years of age" for "less than 14 years of age" in the first sentence of subsection (b). For applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

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, "You're Only as 'Free to Leave' as You Feel: Police Encounters with Juveniles and the Trouble with Differential Standards for Investigatory Stops Under In re I.R.T," see 88 N.C.L. Rev. 1389 (2010).

For article, "Simple Justice: In re J.D.B. and Custodial Interrogations," see 89 N.C. L. Rev. 685 (2011).

For article, "No Brothers Allowed: How Expanding a Juvenile's Miranda Rights Backfired on a North Carolina Sheriff's Department," 89 N.C.L. Rev. 1A (2011).

For article, "Simple Justice: In re J.D.B. and Custodial Interrogations," 89 N.C.L. Rev. 685 (2011).

For article, "Silence, Confessions, and the New Accuracy Imperative," see 65 Duke L.J. 697 (2016).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Applicability of Section. - Whether defendant is a juvenile delinquent is irrelevant to a consideration of whether he is entitled to the protections of former G.S. 7A-595. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).

The rights afforded under this section to be informed of Miranda rights, as well as to have a parent, guardian, or custodian present during questioning, apply only to a person defined to be a juvenile under G.S. 7A-517 (see now G.S. 7B-101), i.e., a person under the age of eighteen who is neither married, emancipated, nor in the military. State v. Brantley, 129 N.C. App. 725, 501 S.E.2d 676 (1998).

"Guardian." - Confession of 13-year-old, taken in the presence of his aunt, was properly admitted in evidence; though the aunt was not his legal guardian or custodian, because she clothed, housed, and fed him, and enrolled him in school, she acted as his "guardian" for purposes of this section. State v. Jones, 147 N.C. App. 527, 556 S.E.2d 644 (2001), cert. denied and appeal dismissed, 355 N.C. 351, 562 S.E.2d 427 (2002).

Despite juvenile's contention that his aunt was his guardian, his suppression motion was properly denied, as she was not considered a "party listed" under G.S. 7B-2101, and the aunt never lived with the juvenile, did not have custody of him, nor acted on his behalf as a parent or his guardian. State v. Oglesby, 174 N.C. App. 658, 622 S.E.2d 152 (2005), aff'd in part, vacated in part, review improvidently allowed in part, 361 N.C. 550, 648 S.E.2d 819 (2007).

"Aunt" Was Not Enumerated Relation. - Denial of defendant's motion to suppress defendant's statement to officers was proper because, although defendant was age 16 at the time of the interrogation, and detectives did not cease questioning when defendant requested to phone defendant's aunt, an "aunt" was not enumerated relation in G.S. 7B-2101 and defendant had no right to have her present during questioning. State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007).

Former G.S. 7A-595 set out mandatory procedures which to be followed when juvenile is interrogated by a law-enforcement officer. In re Riley, 61 N.C. App. 749, 301 S.E.2d 750 (1983).

Miranda Rights Explanation. - An interrogating officer need not explain the Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)) in any greater detail than what is required by Miranda, even when the suspect is a minor. State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94 (1998).

Custodial Interrogation Factors. - Presence of a school resource officer (SRO) or other law enforcement officer while a student is interrogated by a school official weighs heavily on the scale when determining whether what otherwise might appear to be a voluntary encounter is instead a custodial interrogation; Involvement of an SRO in the questioning a child is a factor which is relevant, but not by itself dispositive, to the question of whether the encounter between a child and a school official is a custodial interrogation. Court still must look to all of the remaining Miranda factors. In re D.A.H., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

When a student is interrogated in the presence of a school resource officer (SRO), even when the SRO remains silent, the presence of the officer can create a coercive environment that goes above and beyond the restrictions normally imposed during school, such that a reasonable student would readily believe they are not free to go. In re D.A.H., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Juvenile's rights under this section arise only if the juvenile is in custody. State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).

Right of Juvenile to Have Parent Present. - Under U.S. Const., Amends. V and VI, an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. A juvenile's right, pursuant to subdivision (a)(3) of former G.S. 7A-595, to have a parent present during custodial interrogation is entitled to similar protection. State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).

When juvenile invoked the right to have a parent present during the interrogation, all interrogation should have ceased; since it did not, the trial court erred by denying the juvenile's motion to suppress the statement, which was elicited in violation of G.S. 7B-2101(d). State v. Branham, 153 N.C. App. 91, 569 S.E.2d 24 (2002).

There was evidentiary support for a trial court's determination that defendant juvenile's parents were in close proximity when he was talking to police officers for purposes of his challenge to an inculpatory statement that he made, which he alleged required suppression under Miranda and G.S. 7B-2101; based on their location in their house while the juvenile talked to the police outside, they were near at hand during the questioning process. In re D.A.C., 225 N.C. App. 547, 741 S.E.2d 378 (2013).

Although defendant, a juvenile, asked to call his mother, he never gave any indication that he wanted to have her present for his interrogation, nor did he condition his interview on first speaking with her, he simply asked to call her, and thus, defendant's statement was at best an ambiguous invocation of his right to have his mother present under N.C. Gen. Stat. § 7B-2101(a)(3), which did not require cessation of questioning; because the appellate court did not reach the question of whether defendant's waiver of his statutory and constitutional rights was valid, remand was necessary. State v. Saldierna, 242 N.C. App. 347, 775 S.E.2d 326 (2015), rev'd, remanded, 2016 N.C. LEXIS 1117 (2016).

Although defendant, a juvenile, asked to call his mother, he never gave any indication that he wanted to have her present for his interrogation, nor did he condition his interview on first speaking with her, he simply asked to call her, and thus, defendant's statement was at best an ambiguous invocation of his right to have his mother present under this section, which did not require cessation of questioning. State v. Saldierna, 369 N.C. 401, 794 S.E.2d 474 (2016).

Statutory language is clearly intended to codify the rights afforded to a juvenile subjected to custodial interrogation pursuant to Miranda in addition to affording a juvenile the State statutory right to have a parent, guardian, or custodian present during the interrogation process. State v. Saldierna, 371 N.C. 407, 817 S.E.2d 174 (2018).

Where juvenile defendant was not informed of his right to have a parent, guardian or custodian present during questioning, there can be no finding that such defendant knowingly, willingly, and understandingly waived this privilege. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).

The failure to advise juvenile defendant of his right to have a parent, custodian or guardian present during questioning is not an error of constitutional magnitude, because this privilege is statutory in origin and does not emanate from the Constitution. Therefore, the standard set forth in G.S. 15A-1443(a) must be applied to determine whether the erroneous admission into evidence of defendant's statements to police officers was sufficient to warrant a new trial. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).

There was no custodial interrogation where juvenile defendant was repeatedly told he was not under arrest and was free to leave at any time, and where he signed a statement wherein he stated that he was not under arrest and was giving a statement voluntarily. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).

Law enforcement officials are not required to inform a juvenile that his parents or attorney are actually present before taking his voluntary confession, and their failure to do so does not render the juvenile's confession involuntary as a matter of law or otherwise inadmissible. State v. Gibson, 342 N.C. 142, 463 S.E.2d 193 (1995).

The following warnings were sufficient to satisfy former G.S. 7A-595 and Miranda, even though the juvenile statute contains no requirement of indigency or financial need in order to obtain a court-appointed attorney: "You have the right to remain silent . . . Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before questioning if you wish. You have the right to have your parent, guardian, or custodian with you during questioning. If you decide to answer questions now without a lawyer, parent, guardian or custodian present, you will still have the right to stop answering questions at any time until you talk to a lawyer, parent, guardian, or custodian." State v. McKeithan, 140 N.C. App. 422, 537 S.E.2d 526 (2000).

The failure to warn in accordance with this section must be raised in a motion to suppress and must be argued in the trial court. State v. Jenkins, 311 N.C. 194, 317 S.E.2d 345 (1984).

Parent May Not Waive Rights of Juvenile. - Finding that respondent's mother freely, understandingly, and knowingly waived respondent's juvenile rights is not equivalent to a finding that respondent knowingly and understandingly waived his rights. Furthermore, a parent, guardian, or custodian may not waive any right on behalf of the juvenile. In re Ewing, 83 N.C. App. 535, 350 S.E.2d 887 (1986).

When a juvenile's confession was obtained without the juvenile's parent being present because the parent had voluntarily absented himself from the interrogation, the fact that the parent voluntarily absented himself did not allow the confession to be admissible against the juvenile, under subdivisions (a)(3) and (b) of this section, because the parent could not waive the juvenile's right to have the parent present during the interrogation. In re Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003), review improvidently allowed, appeal dismissed sub nom. In re T.R.B., 358 N.C. 370, 595 S.E.2d 146 (2004).

Failure to Object at Trial Waives Argument on Appeal. - In a capital murder trial, defendant's failure to object at trial to the State's introduction of his out-of-court statement on grounds that he was not advised of his rights under subsection (a) of former G.S. 7A-595 waived his right to complain of its admission on appeal. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987).

Findings Required. - This section clearly provides that before any statement flowing from custodial interrogation is admitted the judge must make the required findings. In re Riley, 61 N.C. App. 749, 301 S.E.2d 750 (1983).

This section requires the trial court to find as a fact that the juvenile knowingly, willingly, and understandingly waived his juvenile rights prior to admitting any statement made by the juvenile during a custodial interrogation. In re Ewing, 83 N.C. App. 535, 350 S.E.2d 887 (1986).

When a juvenile challenged the admission of his confession because it was obtained without the juvenile's parent present, as the parent had voluntarily absented himself from the juvenile's interrogation, it was error for the trial court to fail to determine whether the juvenile was in custody when the confession was obtained. In re Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003), review improvidently allowed, appeal dismissed sub nom. In re T.R.B., 358 N.C. 370, 595 S.E.2d 146 (2004).

Trial court made insufficient findings of fact to support its determination that the juvenile was not in custody during questioning, and therefore the case was remanded, because it failed to make a factual finding that reflected that it considered the juvenile's age at the time he was questioned. In re J.D.F., - N.C. App. - , - S.E.2d - (July 6, 2021).

Where the court's statement contained nothing that could be construed as a factual finding that juvenile's confession was made in the presence of his parent, guardian, custodian or attorney, as required by subsection (b) of former G.S. 7A-595, the case would be remanded for a finding on compliance with former G.S. 7A-595(b). In re Young, 78 N.C. App. 440, 337 S.E.2d 185 (1985).

Confession Held Inadmissible. - Juvenile's confession which resulted from police-initiated custodial interrogation in the absence of counsel or a parent after the juvenile invoked his right to have a parent present during questioning was erroneously admitted. State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).

In a delinquency proceeding, the trial court erred by failing to suppress the juvenile's incriminating statements made while he was detained by school officials as the juvenile, while he was being detained, was treated in such a way that a reasonable person in his situation would have believed he was functionally under arrest; juvenile gave incriminating statements in the course of custodial interrogation without being afforded Miranda warnings and the warnings required under G.S. 7B-2101(a) and without being afforded his right to have a parent present during interrogation pursuant to G.S. 7B-2101(b). In re K.D.L., 207 N.C. App. 453, 700 S.E.2d 766 (2010), writ denied and review denied 365 N.C. 90, 706 S.E.2d 478, 2011 N.C. LEXIS 187 (2011).

Statement Should Have Been Suppressed. - Statements a police officer made to a juvenile during a traffic stop while the juvenile was in investigative detention, handcuffed, and in the back of a patrol car were designed to elicit an incriminating response; thus, a statement made to the officer should have been suppressed as the juvenile had not been informed of the juvenile's rights under Miranda or G.S. 7B-2101. In re L.I., 205 N.C. App. 155, 695 S.E.2d 793 (2010).

Admission of Statement of Juvenile. - Although the trial record did not contain the findings required by former G.S. 7A-595(d), admission of defendant's statement at trial was not prejudicial because it was not inculpatory. It merely gave somewhat differing versions of the defendant's whereabouts on the day in question. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991).

Court of appeals erred in reversing an order adjudicating defendant juvenile a delinquent on the ground that he unlawfully and willfully possessed a weapon on school property because the trial court did not err in admitting, without objection, defendant's statement that he possessed the knife on school property; the supreme court was not prepared to conclude that the school resource officer's presence and participation during the interrogation of defendant at the request of school administrators conducting the investigation rendered the questioning of defendant a custodial interrogation requiring Miranda warnings and the protections of G.S. 7B-2101, and because no motion to suppress defendant's statement was made, no evidence was presented and no findings were made as to either the officer's actual participation in the questioning or the custodial or noncustodial nature of the interrogation or as to whether the statements were freely and voluntarily made. In re W.R., 363 N.C. 244, 675 S.E.2d 342 (2009).

In a delinquency proceeding in which a juvenile appealed the affirmation of the trial court's denial of his motion to suppress, the juvenile was not entitled to the protections of the Miranda decision and G.S. 7B-2101(a) because he had not been in custody when he confessed to four crimes. He had been escorted from class to a conference room, where a police investigator was present along with an assistant principal, one of the assistant principal's interns, and the school resource officer, and there was no indication in the trial court's findings that the juvenile had been restrained in any way or that anyone stood guard at the conference room door, which had been closed, but not locked. In re J.D.B., 363 N.C. 664, 686 S.E.2d 135 (2009), rev'd, remanded, 131 S. Ct. 2394, 2011 U.S. LEXIS 4557, 180 L. Ed. 2d 310 (U.S. 2011).

In a case in which a juvenile appealed the trial court's denial of his motion to suppress his statements, while the protections of the Miranda decision and G.S. 7B-2101(a) applied only to custodial interrogations by law enforcement, the inquiry as to whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest was not equivalent to the broader free to leave test that had long been used for determining, under the Fourth Amendment, whether a person had been seized. In re J.D.B., 363 N.C. 664, 686 S.E.2d 135 (2009), rev'd, remanded, 131 S. Ct. 2394, 2011 U.S. LEXIS 4557, 180 L. Ed. 2d 310 (U.S. 2011).

Murder defendant's offer during an interrogation to continue speaking with the officers the next day was an indication not that he did not wish to be questioned further, but rather that he was perfectly willing to talk with the officers. State v. Clodfelter, 203 N.C. App. 60, 691 S.E.2d 22 (2010).

Defendant juvenile's claim that given that he was attempting to leave the scene of the accident by walking briskly away at the time of an officer's arrival, the fact that he remained on the scene after being stopped by the officer meant that he was in custody for purposes of G.S. 7B-2101 was rejected as defendant did not show that the officer's inquiry subjected him to even a minimal restraint on his freedom of movement or his ability to act as he chose; even if defendant did not feel free to go anywhere he wished at the time of his conversation with the officer, the fact that a defendant was not free to leave did not necessarily constitute custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). In re A.N.C., 225 N.C. App. 315, 750 S.E.2d 835 (2013), review denied 367 N.C. 269, 752 S.E.2d 151, 2013 N.C. LEXIS 1386 (2013).

Admission of an officer's statement that defendant juvenile acknowledged being the driver of a wrecked vehicle did not violate G.S. 7B-2101 since although G.S. 20-166(c) required defendant to stay at the accident scene, the requirement that an individual involved in a motor vehicle accident remain on the scene of the accident did not equate with a restraint on that individual's freedom equivalent to a formal arrest for custodial interrogation purposes. In re A.N.C., 225 N.C. App. 315, 750 S.E.2d 835 (2013), review denied 367 N.C. 269, 752 S.E.2d 151, 2013 N.C. LEXIS 1386 (2013).

Statement Held Voluntary. - Trial court did not err by finding that the juvenile's confession was voluntary because he indicated on his signed confession that the statement was given voluntarily, and therefore the court found that, despite his age, 13, and inexperience, he knew and understood the action he was taking. The detective's statements that he did not believe the juvenile was telling the truth and was holding back did not rise to the level of coercion. In re J.D.F., - N.C. App. - , - S.E.2d - (July 6, 2021).

Spontaneous Statement to Law Enforcement. - Juvenile's statement to a sheriff's corporal and a high school principal, upon their discovering $59 in his pants pockets, that the money "was not from selling drugs" but was his mother's rent money, was properly admitted because it was unsolicited and spontaneous, and not made at the questioning of the corporal. In re D.L.D., 203 N.C. App. 434, 694 S.E.2d 395 (2010).

Subsequent Statement Admissible Where Defendant Initiated Communication. - Defendant's subsequent statement was admissible where defendant stated that he did not wish to answer any questions, but then, upon considering his mother's statement, he turned to the police officer and nodded his head affirmatively, after which the detective asked defendant if he then wished to answer questions without a lawyer present and the defendant answered "yes." State v. Johnson, 136 N.C. App. 683, 525 S.E.2d 830 (2000).

An Unambiguous Invocation of Defendant's Right to Silence. - Trial court did not commit plain error by admitting the portion of defendant's statement concerning a jeep which his brother co-defendant shot at where the agent witness's testimony indicated that defendant's statement was not an unambiguous invocation of his right to silence. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 1380, 149 L. Ed. 2d 305 (2001), cert. dismissed, without prejudice, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. granted, 370 N.C. 587, 809 S.E.2d 594, 2018 N.C. LEXIS 93 (2018).

Waiver of Rights. - The additional language added to the adult rights form adequately conveyed the substance of juvenile defendant's right to have his mother present during questioning; it was clear defendant understood this right, and his actions were a knowing and intelligent waiver of the right. State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996).

A defendant's youth or subnormal mental capacity does not necessarily render him incapable of waiving his rights knowingly and voluntarily. State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94 (1998).

A juvenile knowingly, voluntarily, and understandingly waived her rights, where she admitted to her family and then to a police officer that she and her boyfriend stole money from her grandparents, and after being taken into custody waived her right to have a parent or guardian present and signed a waiver of rights form. State v. Brantley, 129 N.C. App. 725, 501 S.E.2d 676 (1998).

Trial court did not err in denying his motion to suppress his incriminating statement on the ground that it was obtained in violation of G.S. 7B-2101; although he invoked his right to have his mother present during questioning, defendant later initiated further communication and waived right. State v. Williams, 209 N.C. App. 441, 705 S.E.2d 409 (2011).

Defendant juvenile did not invoke his right to have his mother present and validly waived this right; considering evidence supporting the finding that defendant's initialing of the line on the Juvenile Waiver of Rights form, that his mother was with him, was an error, and considering evidence supporting the finding that defendant did not request his mother or ask to contact her, defendant never invoked his right to have his mother present for questioning, and that the evidence could have been interpreted differently was not a basis to reverse the trial court. State v. Watson, 250 N.C. App. 173, 792 S.E.2d 171 (2016).

Trial court erred by concluding that the juvenile defendant knowingly, willingly, and understandingly waived his rights under the constitution or this section because defendant was 16 years old, he had only obtained an eighth grade education, Spanish was his primary language, he was not familiar with the criminal justice system, the record indicated that he did not fully understand the detective's questions, no copy of the Spanish version of the juvenile waiver of rights form existed in the record, before beginning her questioning the detective mischaracterized the gravity of the situation, and he asked to call his mother immediately after signing a form stating he was giving up his rights including his right to have a parent present. State v. Saldierna, 254 N.C. App. 446, 803 S.E.2d 33 (2017).

Court of appeals erred in reversing an order denying defendant juvenile's motion to suppress because the trial court's findings of fact supported its conclusion that defendant knowingly and voluntarily waived his juvenile rights; a detective advised defendant of his juvenile rights in English and Spanish, and he signed the juvenile rights waiver form, which indicated he decided to waive his rights and to speak with the detective without the presence of a parent, guardian, custodian, or attorney. State v. Saldierna, 371 N.C. 407, 817 S.E.2d 174 (2018).

There is no statutory duty to explain a person's rights to a juvenile in greater detail than what is required by former G.S. 7A-595(a). State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94 (1998).

Applicability to Statements Resulting from Custodial Interrogation. - This section pertains only to statements obtained from a juvenile defendant as the result of custodial interrogation. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).

A technical violation of former G.S. 7A-595(a)(3) did not taint a valid waiver of rights by 14 year old defendant 2 days later. State v. Bunnell, 340 N.C. 74, 455 S.E.2d 426 (1995).

The purpose of the requirement in former G.S. 7A-595(d) is to establish the basis for admitting the statement. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991).

Custodial Interrogation Found. - Trial court erred in concluding that defendant juvenile's confession was not the product of a custodial interrogation; juvenile, who was 13 years old, was questioned in the principal's office alongside the school resource officer, was neither told he was free to leave nor that he did not have to answer questions, and was not provided the option of contacting his guardian until after he had already confessed. Trial court was required to take these circumstances into account to determine whether a reasonable 13-year-old would have felt free to leave. In re D.A.H., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Warning Held Not Required. - Reasonable person in s juvenile defendant's position would not have believed himself to be in custody; thus, warnings under Miranda and G.S. 7B-2101(a) were not required. Defendant was not handcuffed, his responses indicated that he understood that he did not have to answer the questions, and he was allowed to leave the school when the bell rang. In re J.D.B., 196 N.C. App. 234, 674 S.E.2d 795 (2009), aff'd, 363 N.C. 664, 686 S.E.2d 135 (2009).

There was evidentiary support for a trial court's determination that defendant juvenile was not in custody and was not subjected to custodial interrogation when he made an inculpatory statement to police officers regarding shooting a gun at a neighbor's house, such that suppression under Miranda and G.S. 7B-2101 was not required; the juvenile was questioned in an open area in his own yard with his parents nearby, the conversation lasted for five minutes, and one officer was not in uniform. In re D.A.C., 225 N.C. App. 547, 741 S.E.2d 378 (2013).

Defendant juvenile was not in custody and was not subjected to custodial interrogation when he made an inculpatory statement to police officers regarding shooting a gun at a neighbor's house, such that suppression under Miranda and G.S. 7B-2101 was not required; the fact that his parents told him to speak honestly with police did not support a finding that the parents were acting as agents of the officers. In re D.A.C., 225 N.C. App. 547, 741 S.E.2d 378 (2013).

Cited in State v. Yancey, 221 N.C. App. 397, 727 S.E.2d 382 (2012).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this chapter.

Waiver of Right to Have Attorney Present. - A juvenile, less than 14 years of age, may waive his right to have an attorney present during interrogation. See opinion of Attorney General to Sgt. James Preston Simmons, Elkin Police Department, 49 N.C.A.G. 88 (1979).

§ 7B-2102. Fingerprinting and photographing juveniles.

  1. A law enforcement officer or agency shall fingerprint and photograph a juvenile who was 10 years of age or older at the time the juvenile allegedly committed a nondivertible offense as set forth in G.S. 7B-1701, when a complaint has been prepared for filing as a petition and the juvenile is in physical custody of law enforcement or the Division.
  2. A county juvenile detention facility shall photograph a juvenile who has been committed to that facility. The county detention facility shall release any photograph it makes or receives pursuant to this section to the Division, upon the Division's request. The duty of confidentiality in subsection (d) of this section applies to the Division, except as provided in G.S. 7B-3102.
  3. If a law enforcement officer or agency does not take the fingerprints or a photograph of the juvenile pursuant to subsection (a) of this section or the fingerprints or photograph have been destroyed pursuant to subsection (e) of this section, a law enforcement officer or agency shall fingerprint and photograph a juvenile who has been adjudicated delinquent if the juvenile was 10 years of age or older at the time the juvenile committed an offense that would be a felony if committed by an adult.
  4. A law enforcement officer, facility, or agency who fingerprints or photographs a juvenile pursuant to this section shall do so in a proper format for transfer to the State Bureau of Investigation and the Federal Bureau of Investigation. After the juvenile, who was 10 years of age or older at the time of the offense, is adjudicated delinquent of an offense that would be a felony if committed by an adult, fingerprints obtained pursuant to this section shall be transferred to the State Bureau of Investigation and placed in the Automated Fingerprint Identification System (AFIS) to be used for all investigative and comparison purposes, and may be entered into a local fingerprint database for the same purposes, if the law enforcement agency with jurisdiction is served by a secure crime laboratory facility that maintains a local fingerprint database. Photographs obtained pursuant to this section shall be placed in a format approved by the State Bureau of Investigation and may be used for all investigative or comparison purposes. The State Bureau of Investigation shall release any photograph it receives pursuant to this section to the Division, upon the Division's request. The duty of confidentiality in subsection (d) of this section applies to the Division, except as provided in G.S. 7B-3102.
  5. Fingerprints and photographs taken pursuant to this section are not public records under Chapter 132 of the General Statutes, shall not be included in the clerk's record pursuant to G.S. 7B-3000, shall be withheld from public inspection or examination, and shall not be eligible for expunction pursuant to G.S. 7B-3200. Fingerprints and photographs taken pursuant to this section shall be maintained separately from any juvenile record, other than the electronic file maintained by the State Bureau of Investigation.
  6. Repealed by Session Laws 2007-458, s. 1, effective October 1, 2007.
  7. If a juvenile is fingerprinted and photographed pursuant to subsection (a) of this section, the custodian of records shall destroy all fingerprints and photographs at the earlier of the following:
    1. The juvenile court counselor or prosecutor does not file a petition against the juvenile within one year of fingerprinting and photographing the juvenile pursuant to subsection (a) of this section;
    2. The court does not find probable cause pursuant to G.S. 7B-2202; or
    3. The juvenile is not adjudicated delinquent of any offense that would be a felony or a misdemeanor if committed by an adult.

The chief court counselor shall notify the local custodian of records, and the local custodian of records shall notify any other record-holding agencies, when a decision is made not to file a petition, the court does not find probable cause, or the court does not adjudicate the juvenile delinquent.

History

(1996, 2nd Ex. Sess., c. 18, s. 23.2(a); 1998-202, s. 6; 2000-137, s. 3; 2001-490, s. 2.16; 2003-297, s. 2; 2007-458, ss. 1, 3(a), (b); 2011-145, s. 19.1( l ); 2019-243, s. 19.5.)

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" and "Division's" for "Department's" throughout.

Session Laws 2007-458, ss. 1, 3(a) and (b), effective October 1, 2007, deleted subsection (d1) which allowed the court to release photographs of juvenile escapees; designated the former second sentence of subsection (a) as subsection (a1), and in subsection (a1), deleted "if the juvenile was at least 10 years old at the time that juvenile allegedly committed a nondivertible offense as set forth in G.S. 7B-1701" at the end of the first sentence and added the last two sentences; and added the last sentence in subsection (c).

Session Laws 2019-243, s. 19.5, effective November 6, 2019, inserted "and may be entered into a local fingerprint database for the same purposes, if the law enforcement agency with jurisdiction is served by a secure crime laboratory facility that maintains a local fingerprint database" in the second sentence of subsection (c).

CASE NOTES

Juvenile Not in Custody for Purposes of Being Informed of Juvenile or Miranda Rights. - As the juvenile was not subject to a restraint on his freedom of movement of the degree associated with a formal arrest, the juvenile was not in custody for the purposes of being informed of juvenile or Miranda rights, and the trial court correctly determined that there was no requirement that the juvenile be informed of, or waive, such rights prior to the interview with the detective. In re Hodge, 153 N.C. App. 102, 568 S.E.2d 878 (2002).

Cited in In re M.E.B., 153 N.C. App. 278, 569 S.E.2d 683 (2002).


§ 7B-2103. Authority to issue nontestimonial identification order where juvenile alleged to be delinquent.

Except as provided in G.S. 7B-2102 or G.S. 15A-284.52(c1), nontestimonial identification procedures shall not be conducted on any juvenile without a court order issued pursuant to this Article unless the juvenile has been charged as an adult or transferred to superior court for trial as an adult in which case procedures applicable to adults, as set out in Articles 14 and 23 of Chapter 15A of the General Statutes, shall apply. A nontestimonial identification order authorized by this Article may be issued by any judge of the district court or of the superior court upon request of a prosecutor. As used in this Article, "nontestimonial identification" means identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a juvenile.

History

(1979, c. 815, s. 1; 1981, c. 454, s. 1; 1998-202, s. 6; 2019-47, s. 1.)

Effect of Amendments. - Session Laws 2019-47, s. 1, effective June 26, 2019, substituted "G.S. 7B-2102 or G.S. 15A-284.52(c1)" for "G.S. 7B-2102" in the first sentence of the section.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

The purpose of former G.S. 7A-596 was to empower officials to conduct the same identification procedures on juveniles as on adults. In re Stallings, 318 N.C. 565, 350 S.E.2d 327 (1986), rehearing dismissed, 319 N.C. 669, 356 S.E.2d 339 (1987).

Applicability to Juvenile Committing Crime Prior to Effective Date of Section. - Application of the provisions of former G.S. 7A-596 and former G.S. 7A-598 to take the fingerprints of a juvenile accused of a crime committed prior to their effective date does not offend N.C. Const., Art. I, § 16, which forbids the enactment of any ex post facto law or a like prohibition found in U.S. Const., Art. I, § 10. In re Stedman, 305 N.C. 92, 286 S.E.2d 527 (1982), overruled on other grounds, State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996).

G.S. 15A-502(c) and former G.S. 7A-596 are procedural statutes, and a change in the evidentiary or procedural law between the time of the offense and the time of trial does not preclude the State from utilizing the new procedure even though at the time of the offense it was unavailable. In re Stedman, 305 N.C. 92, 286 S.E.2d 527 (1982), overruled on other grounds, State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996).

In determining whether evidence obtained in violation of former G.S. 7A-596 should be excluded, the court will consider the following factors: (a) The importance of the particular interest violated; (b) the extent of the deviation from lawful conduct; (c) the extent to which the violation was willful; (d) the extent to which exclusion will tend to deter future violations of the statute. State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764 (1985). But see In re Stallings, 318 N.C. 565, 350 S.E.2d 327 (1986).

The procedural standards for juveniles must be at least as strict as those for adults, when the legislature has given no guidance otherwise. State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764 (1985). But see In re Stallings, 318 N.C. 565, 350 S.E.2d 327 (1986).

Showups. - The legislature did not intend to preclude the use of the showup in juvenile investigations without a court order. This technique serves the important law enforcement objective of efficiency and protects the juvenile from more intrusive identification techniques. In re Stallings, 318 N.C. 565, 350 S.E.2d 327 (1986), rehearing dismissed, 319 N.C. 669, 356 S.E.2d 339 (1987), disapproving the rule stated in State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764 (1985).

Error in Lineup Harmless. - Though detective's actions did not comply with this section, defendant did not produce any evidence which tended to show that his subsequent confession was the direct result of the photo lineup; thus, any error was harmless. State v. Green, 124 N.C. App. 269, 477 S.E.2d 182 (1996), cert. denied and appeal denied, 345 N.C. 644, 483 S.E.2d 714 (1997), aff'd, 348 N.C. 588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999).


§ 7B-2104. Time of application for nontestimonial identification order.

A request for a nontestimonial identification order may be made prior to taking a juvenile into custody or after custody and prior to the adjudicatory hearing.

History

(1979, c. 815, s. 1; 1981, c. 454, s. 2; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Expanded Time Period for Juveniles. - Under G.S. 15A-272, time of application focuses on the arrest of the suspect, while former G.S. 7A-597 (see now this section) focuses on taking the juvenile into custody, indicating an expanded time period when procedural protection of juveniles is necessary. State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764 (1985).


§ 7B-2105. Grounds for nontestimonial identification order.

  1. Except as provided in subsection (b) of this section, a nontestimonial identification order may issue only on affidavit or affidavits sworn to before the court and establishing the following grounds for the order:
    1. That there is probable cause to believe that an offense has been committed that would be a felony if committed by an adult;
    2. That there are reasonable grounds to suspect that the juvenile named or described in the affidavit committed the offense; and
    3. That the results of specific nontestimonial identification procedures will be of material aid in determining whether the juvenile named in the affidavit committed the offense.
  2. A nontestimonial identification order to obtain a blood specimen from a juvenile may issue only on affidavit or affidavits sworn to before the court and establishing the following grounds for the order:
    1. That there is probable cause to believe that an offense has been committed that would be a felony if committed by an adult;
    2. That there is probable cause to believe that the juvenile named or described in the affidavit committed the offense; and
    3. That there is probable cause to believe that obtaining a blood specimen from the juvenile will be of material aid in determining whether the juvenile named in the affidavit committed the offense.

History

(1979, c. 815, s. 1; 1997-80, s. 11; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Applicability to Juvenile Committing Crime Prior to Effective Date of Section. - Application of the provisions of G.S. 7A-596 [see now G.S. 7B-2103] and this section to take the fingerprints of a juvenile accused of a crime committed prior to their effective date does not offend N.C. Const., Art. I, § 16, which forbids the enactment of any ex post facto law or a like prohibition found in U.S. Const., Art. I, § 10. In re Stedman, 305 N.C. 92, 286 S.E.2d 527 (1982), overruled on other grounds, State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996).


§ 7B-2106. Issuance of order.

Upon a showing that the grounds specified in G.S. 7B-2105 exist, the judge may issue an order following the same procedure as in the case of adults under G.S. 15A-274, 15A-275, 15A-276, 15A-277, 15A-278, 15A-279, 15A-280, and 15A-282.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Purpose of References to Statutes. - Reference to the designated statutes in Article 14 of Chapter 15A for adult defendants is essential to comply with the new code provisions for juveniles. For example, trial judges should pay particular attention to G.S. 15A-278, which specifies the necessary contents for the order. In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979).


§ 7B-2107. Nontestimonial identification order at request of juvenile.

A juvenile in custody for or charged with an offense which if committed by an adult would be a felony offense may request that nontestimonial identification procedures be conducted. If it appears that the results of specific nontestimonial identification procedures will be of material aid to the juvenile's defense, the judge to whom the request was directed must order the State to conduct the identification procedures.

History

(1979, c. 815, s. 1; 1997-80, s. 12; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

§ 7B-2108. Destruction of records resulting from nontestimonial identification procedures.

The results of any nontestimonial identification procedures shall be retained or disposed of as follows:

  1. If a petition is not filed against a juvenile who has been the subject of nontestimonial identification procedures, all records of the evidence shall be destroyed.
  2. If the juvenile is not adjudicated delinquent or convicted in superior court following transfer, all records resulting from a nontestimonial order shall be destroyed. Further, in the case of a juvenile who is under 13 years of age and who is adjudicated delinquent for an offense that would be less than a felony if committed by an adult, all records shall be destroyed.
  3. If a juvenile 13 years of age or older is adjudicated delinquent for an offense that would be a felony if committed by an adult, all records resulting from a nontestimonial order may be retained in the court file. Special precautions shall be taken to ensure that these records will be maintained in a manner and under sufficient safeguards to limit their use to inspection by law enforcement officers for comparison purposes in the investigation of a crime.
  4. If the juvenile is transferred to and convicted in superior court, all records resulting from nontestimonial identification procedures shall be processed as in the case of an adult.
  5. Any evidence seized pursuant to a nontestimonial order shall be retained by law enforcement officers until further order is entered by the court.
  6. Destruction of nontestimonial identification records pursuant to this section shall be performed by the law enforcement agency having possession of the records. Following destruction, the law enforcement agency shall make written certification to the court of the destruction.

History

(1979, c. 815, s. 1; 1994, Ex. Sess., c. 22, s. 28; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

§ 7B-2109. Penalty for willful violation.

Any person who willfully violates provisions of this Article which prohibit conducting nontestimonial identification procedures without an order issued by the court shall be guilty of a Class 1 misdemeanor.

History

(1979, c. 815, s. 1; 1993, c. 539, s. 5; 1994, Ex. Sess., c. 24, s. 14(c); 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

ARTICLE 22. Probable Cause Hearing and Transfer Hearing.

Sec.

§ 7B-2200. Transfer of jurisdiction of a juvenile under the age of 16 to superior court.

Except as otherwise provided in G.S. 7B-2200.5, after notice, hearing, and a finding of probable cause the court may, upon motion of the prosecutor or the juvenile's attorney or upon its own motion, transfer jurisdiction over a juvenile to superior court if the juvenile was at least 13 years of age but less than 16 years of age at the time the juvenile allegedly committed an offense that would be a felony if committed by an adult. If the alleged felony constitutes a Class A felony and the court finds probable cause, the court shall transfer the case to the superior court for trial as in the case of adults.

History

(1979, c. 815, s. 1; 1991 (Reg. Sess., 1992), c. 842, s. 1; 1994, Ex. Sess., c. 22, s. 25; 1998-202, s. 6; 2017-57, s. 16D.4(d); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(d), inserted "under the age of 16” in the section heading; and, in the first sentence, added "Except as otherwise provided in G.S. 7B-2200.5,” at the beginning, inserted "at least”, substituted "but less than 16 years of age” for "or older”, and made a stylistic change.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4(d), inserted "under the age of 16" in the section heading; and, in the first sentence, added "Except as otherwise provided in G.S. 7B-2200.5," at the beginning, inserted "at least", substituted "but less than 16 years of age" for "or older", and made a stylistic change. For effective date and applicability, see editor's note.

Legal Periodicals. - For article, "The Jurisdictional Dilemma of the Juvenile Court," see 51 N.C.L. Rev. 195 (1972).

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 empirical study, "The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System," see 40 Wake Forest L. Rev. 727 (2005).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Doli Incapax Abolished. - Although the doctrine of doli incapax may still apply in other contexts, former G.S. 7A-608, as amended in 1994, expresses legislative intent to supersede the doctrine of doli incapax in the context of the transfer of a juvenile, between the ages of thirteen and fourteen, to superior court for trial. State v. Green, 124 N.C. App. 269, 477 S.E.2d 182 (1996), cert. denied and appeal denied, 345 N.C. 644, 483 S.E.2d 714 (1997), aff'd, 348 N.C. 588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999).

Age Requirement Strictly Construed. - The court rejected the defendant's contention that the transfer statutes should be construed to prohibit transfer to superior court of a juvenile who is developmentally, socially, psychologically, and emotionally younger than 13. In re Wright, 137 N.C. App. 104, 527 S.E.2d 70 (2000).

Juvenile Rights. - When read in pari materia, former G.S. 7A-609, 7A-610, and former G.S. 7A-608 were intended by the legislature to provide a juvenile the right to a hearing on the issue of whether his case should be transferred to the Superior Court for trial as an adult and the rights to be represented by counsel in accordance with former G.S. 7A-584, to testify as a witness in his own behalf, to call and examine witnesses, and to produce other evidence in his own behalf. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Transfer of Case Is Within Discretion of Judge. - The decision on whether the case will be transferred to the superior court is left solely within the sound discretion of the district court judge who conducts the probable cause hearing. The exercise of that discretion is not subject to review in the absence of a showing of gross abuse. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977).

No Right to Particular Trial Division. - Neither the juvenile defendant nor the State has the right to have a felony case disposed of in a particular trial division of the General Court of Justice. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977).

Detailed Findings of Fact as to Probable Cause Not Required. - The North Carolina statutes relating to juveniles do not require that a determination of probable cause be supported by detailed findings of fact. In re Bullard, 22 N.C. App. 245, 206 S.E.2d 305, appeal dismissed, 285 N.C. 758, 209 S.E.2d 279 (1974).

Findings of Fact Not Required for Transfer. - The judge is not required to make findings of fact to support his conclusion that the needs of the juvenile or the best interest of the State would be served by transferring the case to the superior court division. It is only required that if he elects to order the transfer, he must state his reasons therefor. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977).

Birthday Rule. - The modern "birthday rule", under which a person attains a given age on the anniversary date of his or her birth is more reflective of common practice and understanding as to when a person reaches a given age. In re Robinson, 120 N.C. App. 874, 464 S.E.2d 86 (1995).

Fractions of days may not be considered in determining when a juvenile can be transferred to superior court for trial pursuant to this section. In re Robinson, 120 N.C. App. 874, 464 S.E.2d 86 (1995).

Jurisdiction Not Proper. - 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).

Transfer Not Proper. - Where juvenile turned eighteen while a case against him was pending in the Court of Appeals, the district court's jurisdiction automatically terminated and the superior court lacked subject matter jurisdiction, because the district court did not properly transfer the case to its jurisdiction. State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996).

Transfer Proper. - 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 G.S. 7B-402] requirements, and made transfer of case to Superior Court mandatory under former G.S.7A-608 [see now this section]. 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).

No Right to Appeal Transfer Decision Upon Guilty Plea. - Under G.S. 15A-1444, defendant had no right to appeal a transfer decision upon a plea of guilty because the appeal did not fall within any of the categories of appeal permitted under G.S. 15A-1444; moreover, defendant did not petition for a writ of certiorari and G.S. 7B-2603(d) did not establish an exception to G.S. 15A-1444(e). State v. Evans, 184 N.C. App. 736, 646 S.E.2d 859 (2007).

Adult Convictions. - State court's records relating to defendant's 1995 convictions revealed that they were adult convictions; although a seventeen-year-old could be tried in North Carolina as either a juvenile or an adult, G.S. 7B-2200 and G.S. 7B-2203 ( North Carolina's district courts possessed exclusive, original jurisdiction over any case involving a juvenile who was alleged to be delinquent, G.S. 7B-1601, thus, if defendant was tried and convicted as a juvenile, he could have been prosecuted only in a North Carolina district court. The judgments underlying defendant's 1995 convictions, however, demonstrated that he was convicted and sentenced in the Superior Court of Surry County, North Carolina, and his 1995 Convictions were therefore necessarily adult convictions. United States v. Allen, 446 F.3d 522 (4th Cir. 2006).

Applied in State v. Collins, 245 N.C. App. 478, 783 S.E.2d 9 (2016); State v. Jefferson, 252 N.C. App. 174, 798 S.E.2d 121 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 708 (N.C. 2017), cert. denied, 2018 U.S. LEXIS 1446 (U.S. 2018), cert. denied, 2018 U.S. LEXIS 1446, 200 L. Ed. 2d 318 (U.S. 2018) cert. denied, 138 S. Ct. 1169, 2018 U.S. LEXIS 1446, 200 L. Ed. 2d 318 (2018).

Cited in In re E.S., 191 N.C. App. 568, 663 S.E.2d 475 (2008), review denied, 362 N.C. 681, 670 S.E.2d 231 (2008); State v. Bowlin, 245 N.C. App. 469, 783 S.E.2d 230 (2016).


§§ 7B-2200.1 through 7B-2200.4: Reserved for future codification purposes.

§ 7B-2200.5. Transfer of jurisdiction of a juvenile at least 16 years of age to superior court.

  1. If a juvenile was 16 years of age or older at the time the juvenile allegedly committed an offense that would be a Class A, B1, B2, C, D, E, F, or G felony if committed by an adult, the court shall transfer jurisdiction over the juvenile to superior court for trial as in the case of adults after either of the following:
    1. Notice to the juvenile and a finding by the court that a bill of indictment has been returned against the juvenile charging the commission of an offense that constitutes a Class A, B1, B2, C, D, E, F, or G felony if committed by an adult.
    2. Notice, hearing, and a finding of probable cause that the juvenile committed an offense that constitutes a Class A, B1, B2, C, D, E, F, or G felony if committed by an adult.
  2. If the juvenile was 16 years of age or older at the time the juvenile allegedly committed an offense that would be a Class H or I felony if committed by an adult, after notice, hearing, and a finding of probable cause, the court may, upon motion of the prosecutor or the juvenile's attorney or upon its own motion, transfer jurisdiction over a juvenile to superior court pursuant to G.S. 7B-2203.
  3. A probable cause hearing conducted pursuant to subdivision (2) of subsection (a) of this section shall be conducted within 90 days of the date of the juvenile's first appearance. The court may continue the hearing for good cause.
  4. In any case where jurisdiction over a juvenile has been transferred to superior court, upon joint motion of the prosecutor and the juvenile's attorney, the court shall remand the case to district court and shall expunge the superior court record in accordance with G.S. 15A-145.8.

History

(2017-57, s. 16D.4(e); 2017-197, s. 5.3; 2018-142, s. 23(b); 2019-186, s. 8(a).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2019-186, s. 12, made subsections (c) and (d) as added by Session Laws 2019-186, s. 8(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2017-197, s. 5.3, effective July 31, 2017, substituted "Class A, B1, B2, C, D, E, F, or G felony" for "Class A, B1, B2, C, D, F, or G felony" in subdivision (a)(1).

Session Laws 2019-186, s. 8(a), added subsections (c) and (d). For effective date and applicability, see editor's note.

§ 7B-2201. Fingerprinting and DNA sample from juvenile transferred to superior court.

  1. When jurisdiction over a juvenile is transferred to the superior court, the juvenile shall be fingerprinted and the juvenile's fingerprints shall be sent to the State Bureau of Investigation.
  2. When jurisdiction over a juvenile is transferred to the superior court, a DNA sample shall be taken from the juvenile if any of the offenses for which the juvenile is transferred are included in the provisions of G.S. 15A-266.3A.

History

(1981, c. 862, s. 2; 1998-202, s. 6; 2010-94, s. 13.)

Effect of Amendments. - Session Laws 2010-94, s. 13, effective February 1, 2011, in the section catchline, inserted "and DNA sample from"; designated the previously existing provisions as subsection (a); and added subsection (b).

Legal Periodicals. - For comment, "Sacrificing Liberty for Security: North Carolina's Unconstitutional Search and Seizure of Arrestee DNA," see 34 Campbell L. Rev. 473 (2012).

§ 7B-2202. Probable cause hearing.

  1. Except as otherwise provided in G.S. 7B-2200.5(a)(1), the court shall conduct a hearing to determine probable cause in all felony cases in which a juvenile was 13 years of age or older when the offense was allegedly committed. Except as otherwise provided in G.S. 7B-2200.5(c), the hearing shall be conducted within 15 days of the date of the juvenile's first appearance. The court may continue the hearing for good cause.
  2. At the probable cause hearing:
    1. A prosecutor shall represent the State;
    2. The juvenile shall be represented by counsel;
    3. The juvenile may testify, call, and examine witnesses, and present evidence; and
    4. Each witness shall testify under oath or affirmation and be subject to cross-examination.
  3. The State shall by nonhearsay evidence, or by evidence that satisfies an exception to the hearsay rule, show that there is probable cause to believe that the offense charged has been committed and that there is probable cause to believe that the juvenile committed it, except:
    1. A report or copy of a report made by a physicist, chemist, firearms identification expert, fingerprint technician, or an expert or technician in some other scientific, professional, or medical field, concerning the results of an examination, comparison, or test performed in connection with the case in issue, when stated in a report by that person, is admissible in evidence;
    2. If there is no serious contest, reliable hearsay is admissible to prove value, ownership of property, possession of property in a person other than the juvenile, lack of consent of the owner, possessor, or custodian of property to the breaking or entering of premises, chain of custody, and authenticity of signatures.
  4. Counsel for the juvenile may waive in writing the right to the hearing and stipulate to a finding of probable cause.
  5. If probable cause is found and transfer to superior court is not required by G.S. 7B-2200 or G.S. 7B-2200.5, upon motion of the prosecutor or the juvenile's attorney or upon its own motion, the court shall either proceed to a transfer hearing or set a date for that hearing. If the juvenile has not received notice of the intention to seek transfer at least five days prior to the probable cause hearing, the court, at the request of the juvenile, shall continue the transfer hearing.
  6. If the court does not find probable cause for a felony offense, the court shall:
    1. Dismiss the proceeding, or
    2. If the court finds probable cause to believe that the juvenile committed a lesser included offense that would constitute a misdemeanor if committed by an adult, either proceed to an adjudicatory hearing or set a date for that hearing. The adjudicatory hearing shall be a separate hearing. The court may continue the adjudicatory hearing for good cause.

History

(1979, c. 815, s. 1; 1981, c. 469, ss. 15, 16; 1994, Ex. Sess., c. 22, s. 26; 1998-202, s. 6; 2015-58, s. 1.2; 2017-57, s. 16D.4(f); 2018-142, s. 23(b); 2019-186, s. 8(b).)

Editor's Note. - Session Laws 2015-58, s. 4, made the last two sentences in subdivision (f)(2), as added by Session Laws 2015-58, s. 1.2, applicable to offenses committed on or after December 1, 2015.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(f), added "Except as otherwise provided in G.S. 7B-2200.5(a)(1),” at the beginning of the first sentence in subsection (a); and inserted "or G.S. 7B-2200.5,” in subsection (e).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2019-186, s. 12, made the amendment of subsection (a) by Session Laws 2019-186, s. 8(b), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2015-58, s. 1.2, effective December 1, 2015, added the last two sentences in subdivision (f)(2). For applicability, see editor's note.

Session Laws 2017-57, s. 16D.4(f), added "Except as otherwise provided in G.S. 7B-2200.5(a)(1)," at the beginning of the first sentence in subsection (a); and inserted "or G.S. 7B-2200.5," in subsection (e). For effective date and applicability, see editor's note.

Session Laws 2019-186, s. 8(b), inserted "Except as otherwise provided in G.S. 7B-2200.5(c)" in the second sentence in subsection (a). For effective date and applicability, see editor's note.

Legal Periodicals. - For comment on due process in juvenile proceedings, see 3 N.C. Cent. L.J. 255 (1972).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Purpose. - A probable cause hearing is not conducted for the purposes of discovery; its purpose is to determine whether there is probable cause to believe that a crime has been committed and that the juvenile respondent committed it. A further purpose of the probable cause hearing prescribed by former G.S. 7A-609 is to determine whether the juvenile's case should be transferred to superior court for trial as an adult. In re Bass, 77 N.C. App. 110, 334 S.E.2d 779 (1985).

Legislative Intent. - The legislature intended that rights accorded a juvenile by former G.S. 7A-609 also should be accorded a juvenile with regard to the District Court's consideration and decision as whether to transfer jurisdiction over the juvenile to Superior Court for trial as an adult. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Subsection (a) of former G.S. 7A-609 requires that a probable cause hearing be conducted in all cases in which a minor 14 years of age or older is charged with a felony before the court may transfer the case to the superior court for trial or proceed with an adjudicatory hearing in the district court. In re Bass, 77 N.C. App. 110, 334 S.E.2d 779 (1985).

Trial Court May Conduct Probable Cause, Transfer, and Adjudicatory Hearings In One Proceeding. - Nothing in G.S. 7B-2202 and G.S. 7B-2203 requires the trial court to conduct entirely separate probable cause, transfer, and adjudicatory hearings because the plain language of the statutes provides that the trial court "shall either proceed" from one hearing to the next or set a date for that hearing; thus, the trial court may conduct all three hearings in one proceeding, so long as the juvenile's requisite statutory and constitutional rights are safeguarded. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

Burden on Juvenile. - The burden is upon juvenile to show a reasonable possibility that a different result would have been reached at his adjudicatory hearing had he been afforded a probable cause hearing. In re Bass, 77 N.C. App. 110, 334 S.E.2d 779 (1985).

Transfer of Case Is Within Discretion of Judge. - The decision on whether the case will be transferred to the superior court is left solely within the sound discretion of the district court judge who conducts the probable cause hearing. The exercise of that discretion is not subject to review in the absence of a showing of gross abuse. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977).

Juvenile Rights. - When read in pari materia, former G.S. 7A-608, 7A-609 and 7A-610 were intended by the legislature to provide a juvenile the right to a hearing on the issue of whether his case should be transferred to the Superior Court for trial as an adult and the rights to be represented by counsel in accordance with former G.S. 7A-584, to testify as a witness in his own behalf, to call and examine witnesses, and to produce other evidence in his own behalf. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Statutorily Mandated Protections Afforded To Juvenile. - Protections provided in G.S. 7B-2202, G.S. 7B-2203, and G.S. 7B-2405 were afforded to defendant juvenile at adjudicatory and transfer hearings because defendant received written notice of the facts alleged in the juvenile petition, he was represented by counsel throughout both hearings, and he was present, put forth evidence on his behalf, and cross-examined the State's witnesses; defendant failed to show how he was prejudiced by the trial court's decision to conduct the adjudicatory hearing before adjudicating him a delinquent juvenile. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

No Right to Particular Trial Division. - Neither the juvenile defendant nor the State has the right to have a felony case disposed of in a particular trial division of the General Court of Justice. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977).

Findings of Fact Not Required for Transfer. - The judge is not required to make findings of fact to support his conclusion that the needs of the juvenile or the best interest of the State would be served by transferring the case to the superior court division. It is only required that if he elects to order the transfer, he must state his reasons therefor. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977), decided under former G.S. 7A-280.

Juvenile Not Placed in Jeopardy Where Only Probable Cause Determined. - Where there was only a determination of probable cause in a hearing before the district court, even though the district court order referred to the hearing as having been adjudicatory and dispositional, the juveniles were not placed in jeopardy by the hearing in the district court before the case's transfer to the superior court. In re Bullard, 22 N.C. App. 245, 206 S.E.2d 305, appeal dismissed, 285 N.C. 758, 209 S.E.2d 279 (1974).


§ 7B-2203. Transfer hearing.

  1. At the transfer hearing, the prosecutor and the juvenile may be heard and may offer evidence, and the juvenile's attorney may examine any court or probation records, or other records the court may consider in determining whether to transfer the case.
  2. In the transfer hearing, the court shall determine whether the protection of the public and the needs of the juvenile will be served by transfer of the case to superior court and shall consider the following factors:
    1. The age of the juvenile;
    2. The maturity of the juvenile;
    3. The intellectual functioning of the juvenile;
    4. The prior record of the juvenile;
    5. Prior attempts to rehabilitate the juvenile;
    6. Facilities or programs available to the court prior to the expiration of the court's jurisdiction under this Subchapter and the likelihood that the juvenile would benefit from treatment or rehabilitative efforts;
    7. Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; and
    8. The seriousness of the offense and whether the protection of the public requires that the juvenile be prosecuted as an adult.
  3. Any order of transfer shall specify the reasons for transfer. When the case is transferred to superior court, the superior court has jurisdiction over that felony, any offense based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan of that felony, and any greater or lesser included offense of that felony.
  4. If the court does not transfer the case to superior court, the court shall either proceed to an adjudicatory hearing or set a date for that hearing. The adjudicatory hearing shall be a separate hearing. The court may continue the adjudicatory hearing for good cause.

History

(1979, c. 815, s. 1; 1983, c. 532, s. 1; 1994, Ex. Sess., c. 22, s. 27; 1998-202, s. 6; 2015-58, s. 1.3.)

Editor's Note. - Session Laws 2015-58, s. 4, made the last two sentences in subsection (d), as added by Session Laws 2015-58, s. 1.3, applicable to offenses committed on or after December 1, 2015.

Effect of Amendments. - Session Laws 2015-58, s. 1.3, effective December 1, 2015, added the last two sentences in subsection (d). 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.

Constitutionality. - Defendants contention that former G.S. 7A-610 (see now this section) failed to guarantee due process because it was vague and overbroad was without merit. State v. Green, 124 N.C. App. 269, 477 S.E.2d 182 (1996), cert. denied and appeal denied, 345 N.C. 644, 483 S.E.2d 714 (1997), aff'd, 348 N.C. 588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999).

This section is not void for vagueness since it puts a person of ordinary intelligence on notice that 13-year-old offenders will either have their cases transferred to superior court or are in jeopardy of having their cases transferred if the juvenile court deems it warranted, and it also provides the juvenile court judge with sufficient guidance and criteria to make discretionary transfer rulings. State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999).

Purpose. - A probable cause hearing is not conducted for the purposes of discovery; its purpose is to determine whether there is probable cause to believe that a crime has been committed and that the juvenile respondent committed it. A further purpose of the probable cause hearing prescribed by former G.S. 7A-610 (see now this section) is to determine whether the juvenile's case should be transferred to superior court for trial as an adult. In re Bass, 77 N.C. App. 110, 334 S.E.2d 779 (1985).

Legislative Intent. - The legislature intended that rights accorded a juvenile by former G.S. 7A-610 (see now this section) also should be accorded a juvenile with regard to the District Court's consideration and decision as whether to transfer jurisdiction over the juvenile to Superior Court for trial as an adult. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Trial Court May Conduct Probable Cause, Transfer, and Adjudicatory Hearings In One Proceeding. - Nothing in G.S. 7B-2202 and G.S. 7B-2203 requires the trial court to conduct entirely separate probable cause, transfer, and adjudicatory hearings because the plain language of the statutes provides that the trial court "shall either proceed" from one hearing to the next or set a date for that hearing; thus, the trial court may conduct all three hearings in one proceeding, so long as the juvenile's requisite statutory and constitutional rights are safeguarded. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

Juvenile Rights. - When read in pari materia, former G.S. 7A-608, 7A-609 and 7A-610 were intended by the legislature to provide a juvenile the right to a hearing on the issue of whether his case should be transferred to the Superior Court for trial as an adult and the rights to be represented by counsel in accordance with former G.S. 7A-584, to testify as a witness in his own behalf, to call and examine witnesses, and to produce other evidence in his own behalf. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Statutorily Mandated Protections Afforded To Juvenile. - Protections provided in G.S. 7B-2202, G.S. 7B-2203, and G.S. 7B-2405 were afforded to defendant juvenile at adjudicatory and transfer hearings because defendant received written notice of the facts alleged in the juvenile petition, he was represented by counsel throughout both hearings, and he was present, put forth evidence on his behalf, and cross-examined the State's witnesses; defendant failed to show how he was prejudiced by the trial court's decision to conduct the adjudicatory hearing before adjudicating him a delinquent juvenile. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

Findings of Fact Not Required for Transfer. - The judge is not required to make findings of fact to support his conclusion that the needs of the juvenile or the best interest of the State would be served by transferring the case to the superior court division. It is only required that if he elects to order the transfer, he must state his reasons therefor. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977), decided under former G.S. 7A-280.

Transfer of Case Is Within Discretion of Judge. - The decision on whether the case will be transferred to the superior court is left solely within the sound discretion of the district court judge who conducts the probable cause hearing. The exercise of that discretion is not subject to review in the absence of a showing of gross abuse. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977), decided under former G.S. 7A-280.

Transfer of Case Was Abuse of Discretion. - Superior court erred in finding that a district court abused the court's discretion in transferring a juvenile's case to the superior court because the superior court failed to properly apply the abuse of discretion standard of review and effectively engaged in de novo review by making findings on the evidence relating to the factors set forth in G.S. 7B-2203(b); the superior court chose to give more weight than the district court did to the expert testimony addressing the facilities and programs available in the juvenile system and the likelihood that the juvenile would benefit from such treatment, but the district court found other factors to be more compelling and entitled to greater weight, including the juvenile's age, his average to above average cognitive abilities, the aggressive, violent, premeditated, and willful manner in which the alleged crimes were committed, and the seriousness of the crimes. In re E.S., 191 N.C. App. 568, 663 S.E.2d 475 (2008), review denied, 362 N.C. 681, 670 S.E.2d 231 (2008).

No Right to Particular Trial Division. - Neither the juvenile defendant nor the State has the right to have a felony case disposed of in a particular trial division of the General Court of Justice. In re Bunn, 34 N.C. App. 614, 239 S.E.2d 483 (1977), decided under former G.S. 7A-280.

The decision to transfer a juvenile's case to superior court lies solely within the sound discretion of the district court judge and is not subject to review absent a showing of gross abuse of discretion. State v. Green, 124 N.C. App. 269, 477 S.E.2d 182 (1996), cert. denied and appeal denied, 345 N.C. 644, 483 S.E.2d 714 (1997), aff'd, 348 N.C. 588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999).

Transfer Within Statutory Guidelines. - Juvenile court judge acted within statutory guidelines in transferring a 13-year-old defendant to superior court to stand trial on charges of first-degree sexual offense, attempted first-degree rape, and first-degree burglary, where the judge considered the seriousness of the offenses, the fact that the victim was a stranger to the juvenile, the community's need to be aware of and protected from such serious crimes, defendant's history of assaultive behavior, his acknowledgment of difficulty in controlling his temper, and the strong evidence of his guilt, considering his confession. State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999).

Evidence Supported Transfer. - The trial court's order transferring first degree sex offense charges against 13-year-old to the Superior Court was supported by sufficient evidence and findings; and due consideration of juvenile's age, maturity, condition or needs for treatment was given although not required. In re Wright, 137 N.C. App. 104, 527 S.E.2d 70 (2000).

The juvenile court abused its discretion in transferring felony charges to superior court under former G.S. 7A-610 where the transfer order was deficient because it failed to adequately state reasons for the transfer, as required by the section and State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998); nor did it reflect that consideration was given to the needs of the juvenile, to his rehabilitative potential, and to the family support he received. In re J.L.W., 136 N.C. App. 596, 525 S.E.2d 500 (2000).

Adult Convictions. - State court's records relating to defendant's 1995 convictions revealed that they were adult convictions; although a seventeen-year-old could be tried in North Carolina as either a juvenile or an adult, G.S. 7B-2200 and G.S. 7B-2203, North Carolina's district courts possessed exclusive, original jurisdiction over any case involving a juvenile who was alleged to be delinquent, G.S. 7B-1601, thus, if defendant was tried and convicted as a juvenile, he could have been prosecuted only in a North Carolina district court. The judgments underlying defendant's 1995 convictions, however, demonstrated that he was convicted and sentenced in the Superior Court of Surry County, North Carolina, and his 1995 Convictions were therefore necessarily adult convictions. United States v. Allen, 446 F.3d 522 (4th Cir. 2006).

Cited in In re G.C., 230 N.C. App. 511, 750 S.E.2d 548 (2013); State v. Jefferson, 252 N.C. App. 174, 798 S.E.2d 121 (2017), review denied, 804 S.E.2d 527, 2017 N.C. LEXIS 708 (N.C. 2017), cert. denied, 2018 U.S. LEXIS 1446 (U.S. 2018), cert. denied, 2018 U.S. LEXIS 1446, 200 L. Ed. 2d 318 (U.S. 2018) cert. denied, 138 S. Ct. 1169, 2018 U.S. LEXIS 1446, 200 L. Ed. 2d 318 (2018).


§ 7B-2204. Right to pretrial release; detention.

  1. Once the order of transfer has been entered, the juvenile has the right to pretrial release as provided in G.S. 15A-533 and G.S. 15A-534. The release order shall specify the person or persons to whom the juvenile may be released. Pending release, the court shall order that the juvenile be detained in a detention facility while awaiting trial. Personnel of the Juvenile Justice Section of the Division, or personnel approved by the Juvenile Justice Section, shall transport the juvenile from the detention facility to court.
  2. The court may order the juvenile to be held in a holdover facility at any time the presence of the juvenile is required in court for pretrial hearings or trial, if the court finds that it would be inconvenient to return the juvenile to the detention facility. Personnel of the Justice Section of the Division, or personnel approved by the Juvenile Justice Section, shall transport the juvenile from the holdover facility to court and shall transport the juvenile back to the detention center.
  3. If the juvenile reaches the age of 18 years while awaiting the completion of proceedings in superior court, the juvenile shall be transported by personnel of the Juvenile Justice Section of the Division, or personnel approved by the Juvenile Justice Section, to the custody of the sheriff of the county where the charges arose.
  4. Should the juvenile be found guilty, or enter a plea of guilty or no contest to a criminal offense in superior court and receive an active sentence, then immediate transfer to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall be ordered. Until such time as the juvenile is transferred to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the juvenile may be detained in a holdover facility. The juvenile may not be detained in a detention facility pending transfer to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, unless the detention facility is operated by the sheriff pursuant to G.S. 7B-1905(b).
  5. The juvenile may be kept by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety as a safekeeper until the juvenile is placed in an appropriate correctional program.

History

(1979, c. 815, s. 1; 1987, c. 144; 1991, c. 352, s. 1; 1998-202, s. 6; 2011-145, s. 19.1(h); 2017-186, s. 2(k); 2019-186, s. 9.)

Editor's Note. - Session Laws 2019-186, s. 12, made the amendment of this section by Session Laws 2019-186, s. 9, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted "Division of Adult Correction of the Department of Public Safety" for "Department of Correction."

Session Laws 2017-186, s. 2(k), effective December 1, 2017, inserted "and Juvenile Justice" throughout the section; and made a stylistic change.

Session Laws 2019-186, s. 9, designated prior provisions as subsections (a), (b), (d) and (e); added the last sentence in subsections (a) and (b); added subsection (c); and inserted "unless the detention facility is operated by the sheriff of the county pursuant G.S. 7B-1905(b)" in subsection (d). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

ARTICLE 23. Discovery.

Sec.

§ 7B-2300. Disclosure of evidence by petitioner.

  1. Statement of the Juvenile. - Upon motion of a juvenile alleged to be delinquent, the court shall order the petitioner:
    1. To permit the juvenile to inspect and copy any relevant written or recorded statements within the possession, custody, or control of the petitioner made by the juvenile or any other party charged in the same action; and
    2. To divulge, in written or recorded form, the substance of any oral statement made by the juvenile or any other party charged in the same action.
  2. Names of Witnesses. - Upon motion of the juvenile, the court shall order the petitioner to furnish the names of persons to be called as witnesses. A copy of the record of witnesses under the age of 16 shall be provided by the petitioner to the juvenile upon the juvenile's motion if accessible to the petitioner.
  3. Documents and Tangible Objects. - Upon motion of the juvenile, the court shall order the petitioner to permit the juvenile to inspect and copy books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or portions thereof:
    1. Which are within the possession, custody, or control of the petitioner, the prosecutor, or any law enforcement officer conducting an investigation of the matter alleged; and
    2. Which are material to the preparation of the defense, are intended for use by the petitioner as evidence, or were obtained from or belong to the juvenile.
  4. Reports of Examinations and Tests. - Upon motion of a juvenile, the court shall order the petitioner to permit the juvenile to inspect and copy results of physical or mental examinations or of tests, measurements, or experiments made in connection with the case, within the possession, custody, or control of the petitioner. In addition upon motion of a juvenile, the court shall order the petitioner to permit the juvenile to inspect, examine, and test, subject to appropriate safeguards, any physical evidence or a sample of it or tests or experiments made in connection with the evidence in the case if it is available to the petitioner, the prosecutor, or any law enforcement officer conducting an investigation of the matter alleged, and if the petitioner intends to offer the evidence at trial.
  5. Except as provided in subsections (a) through (d) of this section, this Article does not require the production of reports, memoranda, or other internal documents made by the petitioner, law enforcement officers, or other persons acting on behalf of the petitioner in connection with the investigation or prosecution of the case or of statements made by witnesses or the petitioner to anyone acting on behalf of the petitioner.
  6. Nothing in this section prohibits a petitioner from making voluntary disclosures in the interest of justice.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

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).

CASE NOTES

Trial court erred in failing to allow juvenile defendant's motion in limine, continue the case, or find another way to remedy a situation created by the failure of the State to comply with the plain mandate of G.S. 7B-2300(b), which required the State, when requested, to disclose the names of witnesses to the juvenile defendant. In re A.M., 220 N.C. App. 136, 724 S.E.2d 651 (2012).


§ 7B-2301. Disclosure of evidence by juvenile.

  1. Names of Witnesses. - Upon motion of the petitioner, the court shall order the juvenile to furnish to the petitioner the names of persons to be called as witnesses.
  2. Documents and Tangible Objects. - If the court grants any relief sought by the juvenile under G.S. 7B-2300, upon motion of the petitioner, the court shall order the juvenile to permit the petitioner to inspect and copy books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or portions thereof which are within the possession, custody, or control of the juvenile and which the juvenile intends to introduce in evidence.
  3. Reports of Examinations and Tests. - If the court grants any relief sought by the juvenile under G.S. 7B-2300, upon motion of the petitioner, the court shall order the juvenile to permit the petitioner to inspect and copy results of physical or mental examinations or of tests, measurements, or experiments made in connection with the case within the possession and control of the juvenile which the juvenile intends to introduce in evidence or which were prepared by a witness whom the juvenile intends to call if the results relate to the witness's testimony. In addition, upon motion of a petitioner, the court shall order the juvenile to permit the petitioner to inspect, examine, and test, subject to appropriate safeguards, any physical evidence or a sample of it if the juvenile intends to offer the evidence or tests or experiments made in connection with the evidence in the case.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

§ 7B-2302. Regulation of discovery; protective orders.

  1. Upon written motion of a party and a finding of good cause, the court may at any time order that discovery or inspection be denied, restricted, or deferred.
  2. The court may permit a party seeking relief under subsection (a) of this section to submit supporting affidavits or statements to the court for in camera inspection. If thereafter the court enters an order granting relief under subsection (a) of this section, the material submitted in camera must be available to the Court of Appeals in the event of an appeal.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

§ 7B-2303. Continuing duty to disclose.

If a party, subject to compliance with an order issued pursuant to this Article, discovers additional evidence prior to or during the hearing or decides to use additional evidence, and if the evidence is or may be subject to discovery or inspection under this Article, the party shall promptly notify the other party of the existence of the additional evidence or of the name of each additional witness.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

ARTICLE 24. Hearing Procedures.

Sec.

§ 7B-2400. Amendment of petition.

The court may permit a petition to be amended when the amendment does not change the nature of the offense alleged. If a motion to amend is allowed, the juvenile shall be given a reasonable opportunity to prepare a defense to the amended allegations.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

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 comment, "Negotiating Miller Madness: Why North Carolina Gets Juvenile Resentencing Right While Other States Drop the Ball," see 91 N.C. L. Rev. 2179 (2013).

CASE NOTES

Editor's Note. - 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.

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).


§ 7B-2401. Determination of incapacity to proceed; evidence; temporary commitment; temporary orders.

The provisions of G.S. 15A-1001, 15A-1002, and 15A-1003 apply to all cases in which a juvenile is alleged to be delinquent. No juvenile committed under this section may be placed in a situation where the juvenile will come in contact with adults committed for any purpose.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

§ 7B-2402. Open hearings.

All hearings authorized or required pursuant to this Subchapter shall be open to the public unless the court closes the hearing or part of the hearing for good cause, upon motion of a party or its own motion. If the court closes the hearing or part of the hearing to the public, the court may allow any victim, member of a victim's family, law enforcement officer, witness or any other person directly involved in the hearing to be present at the hearing.

In determining good cause to close a hearing or part of a hearing, the court shall consider the circumstances of the case, including, but not limited to, the following factors:

  1. The nature of the allegations against the juvenile;
  2. The age and maturity of the juvenile;
  3. The benefit to the juvenile of confidentiality;
  4. The benefit to the public of an open hearing; and
  5. The extent to which the confidentiality of the juvenile's file 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.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1998-229, 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.

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).

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).

Open Hearing in Juvenile Action. - There was no abuse of discretion in denying the parties' motion to close juvenile proceeding on involuntary manslaughter charges to public where the trial court conducted a thorough hearing on the issue, hearing arguments from both parties and testimony from a detective and respondent's mother. In re K.T.L., 177 N.C. App. 365, 629 S.E.2d 152 (2006), review denied, 362 N.C. 472 642 S.E.2d 442 (2007).


§ 7B-2402.1. Restraint of juveniles in courtroom.

At any hearing authorized or required by this Subchapter, the judge may subject a juvenile to physical restraint in the courtroom only when the judge finds the restraint to be reasonably necessary to maintain order, prevent the juvenile's escape, or provide for the safety of the courtroom. Whenever practical, the judge shall provide the juvenile and the juvenile's attorney an opportunity to be heard to contest the use of restraints before the judge orders the use of restraints. If restraints are ordered, the judge shall make findings of fact in support of the order.

History

(2007-100, s. 1.)

Editor's Note. - Session Laws 2007-100, s. 2, made this section effective October 1, 2007, and applicable to all hearings conducted on or after that date.

§ 7B-2403. Adjudicatory hearing.

The adjudicatory hearing shall be held within a reasonable time in the district at the time and place the chief district court judge designates.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1998-229, 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).

For empirical study, "The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System," see 40 Wake Forest L. Rev. 727 (2005).

CASE NOTES

Editor's Note. - The following cases were decided prior to the enactment of this Chapter.

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).

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).


§ 7B-2404. Participation of the prosecutor; voluntary dismissal.

  1. A prosecutor shall represent the State in contested delinquency hearings including first appearance, detention, probable cause, transfer, adjudicatory, dispositional, probation revocation, post-release supervision, and extended jurisdiction hearings.
  2. A prosecutor may dismiss any allegations stated in a juvenile petition with or without leave by entering an oral dismissal in open court at any time or by filing a written dismissal with the clerk. The juvenile, the juvenile's parent, guardian, or custodian, and the juvenile's counsel shall be notified of the dismissal by the prosecutor either in open court or by being served with the written dismissal. In addition, the written dismissal shall be served on (i) the chief court counselor or his or her designee and (ii) if the juvenile is being held in a detention center, the director of the detention center. If the prosecutor dismisses the petition with leave because of the failure of the juvenile to appear in court, the prosecutor may refile the petition if the juvenile is apprehended or apprehension is imminent.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 12; 1998-202, s. 6; 2015-58, s. 2.2.)

Editor's Note. - Session Laws 2015-58, s. 4, made subsection (b) of this section, as added by Session Laws 2015-58, s. 2.2, applicable to offenses committed on or after December 1, 2015.

Effect of Amendments. - Session Laws 2015-58, s. 2.2, effective December 1, 2015, designated the existing language as subsection (a) and added subsection (b). For applicability, see editor's note.

§ 7B-2405. Conduct of the adjudicatory hearing.

The adjudicatory hearing shall be a judicial process designed to determine whether the juvenile is undisciplined or delinquent. In the adjudicatory hearing, the court shall protect the following rights of the juvenile and the juvenile's parent, guardian, or custodian to assure due process of law:

  1. The right to written notice of the facts alleged in the petition;
  2. The right to counsel;
  3. The right to confront and cross-examine witnesses;
  4. The privilege against self-incrimination;
  5. The right of discovery; and
  6. All rights afforded adult offenders except the right to bail, the right of self-representation, and the right of trial by jury.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

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).

Statutorily Mandated Protections Afforded To Juvenile. - Protections provided in G.S. 7B-2202, G.S. 7B-2203, and G.S. 7B-2405 were afforded to defendant juvenile at adjudicatory and transfer hearings because defendant received written notice of the facts alleged in the juvenile petition, he was represented by counsel throughout both hearings, and he was present, put forth evidence on his behalf, and cross-examined the State's witnesses; defendant failed to show how he was prejudiced by the trial court's decision to conduct the adjudicatory hearing before adjudicating him a delinquent juvenile. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

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).

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).

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).

Applied in In re Lineberry, 154 N.C. App. 246, 572 S.E.2d 229 (2002); In re T.E.F., 359 N.C. 570, 614 S.E.2d 296 (2005).

Cited in In re Eades, 143 N.C. App. 712, 547 S.E.2d 146 (2001); In re B.E., 186 N.C. App. 656, 652 S.E.2d 344 (2007); In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014).

II. DUE PROCESS RIGHTS.

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).

Privilege Against Self-Incrimination - Juvenile who was adjudicated to be a delinquent because of his sexual assault of another child could not be required, as a condition of his probation, to admit to the underlying offense, for purposes of treatment, without being granted use immunity or some other protection from the use of such an admission against him because the privilege against self-incrimination applied to juveniles, under subdivision (4) of this section. In re Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003), review improvidently allowed, appeal dismissed sub nom. In re T.R.B., 358 N.C. 370, 595 S.E.2d 146 (2004).

Trial court failed to advise defendant juvenile of his right against self-incrimination before he testified and incriminated himself, and the error was not harmless beyond a reasonable doubt. Directly asking whether defendant understood his rights after he testified given was not sufficient to satisfy the requirements under G.S. 7B-2405. In re J.B., 261 N.C. App. 371, 820 S.E.2d 369 (2018), review denied, stay denied, 824 S.E.2d 406, 2019 N.C. LEXIS 223 (2019).

Juvenile Admission. - Although a trial court did not strictly comply with G.S. 15A-1022(d), a juvenile had been informed of the consequences of his Alford admission and understood what would happen if he persisted in making such an admission because the juvenile: (1) acknowledged during his colloquy that he was admitting responsibility for committing misdemeanor possession of stolen goods; (2) acknowledged he had been informed of the most severe consequences that could result from making the admission; (3) indicated he understood the charge and had discussed available defenses with his attorney; and (4) stated he understood he could deny the allegations and have a hearing and that, by admitting responsibility, he was foregoing that right. In re C.L., 217 N.C. App. 109, 719 S.E.2d 132 (2011).

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).

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).

Right to Make Closing Argument. - Conviction for indecent liberties with a child at least three years younger than defendant could not stand because defense counsel was not given an opportunity to make a closing argument. In re A.W., 209 N.C. App. 596, 706 S.E.2d 305 (2011).

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).

Harmless Error Found. - Trial court's failure to comply with G.S. 7B-2405 by allowing a juvenile to testify without determining if he understood his privilege against self-incrimination was harmless error as his testimony was either consistent with the State's evidence or favorable to the juvenile. In re J.R.V., 212 N.C. App. 205, 710 S.E.2d 411 (2011).


§ 7B-2406. Continuances.

The court for good cause may 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.

History

(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 9; 1998-202, s. 6.)

CASE NOTES

Continuance For the State. - Trial court did not abuse its discretion by ordering a juvenile into custody and continuing his disposition hearing with regard to charges of breaking and entering, trespass, and injury to real property, because a fourth charge arose during the juvenile's adjudication hearing as he was seen by a court counselor mouthing the words "I'm going to kick your ass" to a witness who had just testified against him, therefore, the State was entitled to more time to prepare since the fourth charge of intimidating a witness was added. In re R.D.R., 175 N.C. App. 397, 623 S.E.2d 341 (2006), review denied, 361 N.C. 219, 642 S.E.2d 447 (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).

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).

Motion Properly Denied. - Trial court did not abuse its discretion by denying a juvenile's continuance motion, pursuant to G.S. 7B-2406, because the juvenile was not seeking to obtain additional evidence, reports or assessments, but rather was seeking to review a pre-dispositional report that had been available to the juvenile's attorney for some period of time, and the juvenile was not prejudiced by the denial of the motion. In re C.L., 217 N.C. App. 109, 719 S.E.2d 132 (2011).

Cited in In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449 (2009), rev'd 364 N.C. 214 (2010); In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).


§ 7B-2407. When admissions by juvenile may be accepted.

  1. The court may accept an admission from a juvenile only after first addressing the juvenile personally and:
    1. Informing the juvenile that the juvenile has a right to remain silent and that any statement the juvenile makes may be used against the juvenile;
    2. Determining that the juvenile understands the nature of the charge;
    3. Informing the juvenile that the juvenile has a right to deny the allegations;
    4. Informing the juvenile that by the juvenile's admissions the juvenile waives the juvenile's right to be confronted by the witnesses against the juvenile;
    5. Determining that the juvenile is satisfied with the juvenile's representation; and
    6. Informing the juvenile of the most restrictive disposition on the charge.
  2. By inquiring of the prosecutor, the juvenile's attorney, and the juvenile personally, the court shall determine whether there were any prior discussions involving admissions, whether the parties have entered into any arrangement with respect to the admissions and the terms thereof, and whether any improper pressure was exerted. The court may accept an admission from a juvenile only after determining that the admission is a product of informed choice.
  3. The court may accept an admission only after determining that there is a factual basis for the admission. This determination may be based upon any of the following information: a statement of the facts by the prosecutor; a written statement of the juvenile; sworn testimony which may include reliable hearsay; or a statement of facts by the juvenile's attorney.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

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. - Many of the following cases were decided prior to the enactment of this Chapter.

Acceptance of Admission. - In a juvenile hearing to determine delinquency, which may lead to commitment to a State institution, an admission by the juvenile of the allegations of the petition must be made with awareness of the consequences of the admission and must be made understandingly and voluntarily, and these facts must affirmatively appear in the record of the proceeding. 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); In re Johnson, 32 N.C. App. 492, 232 S.E.2d 486 (1977).

Applicability. - Where a juvenile's court supervision was revoked for probation violations, it was not error to fail to make the specific inquiries enumerated in G.S. 7B-2407 because G.S. 7B-2407 did not apply to the juvenile's admission, or admissions by the juvenile through the juvenile's attorney, that the juvenile violated conditions of court supervision. In re D.J.M., 181 N.C. App. 126, 638 S.E.2d 610 (2007).

Colloquy Requirements. - Statute does not require the exact statutory language to be used during the colloquy, but rather requires the court to orally and clearly inform the juvenile of his rights right. In re W.M.C.M., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Explanation of Confrontation Rights. - Trial court gave a broader explanation to the juvenile of his confrontation rights than the exact statutory language in G.S. 7B-2407(a)(4) and followed the transcript of admission form almost verbatim; the juvenile understood that he could deny the allegations and have a hearing and that, by admitting responsibility, he was foregoing that right. In re W.M.C.M., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Court which initially adjudged the juvenile to be delinquent erred in accepting the juvenile's admission. In re Kenyon N., 110 N.C. App. 294, 429 S.E.2d 447 (1993).

An admission by the juvenile to the allegations of the petition is equivalent to a plea of guilty by an adult in a criminal prosecution. In re Johnson, 32 N.C. App. 492, 232 S.E.2d 486 (1977).

Court to Make Individual Inquiries. - It is the duty of the trial judge in carrying out the requirements of this section to give each child individual attention, as it is impossible for the judge to determine that the admission is a product of informed choice without making the required inquiries of each child individually. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Acceptance of Admission Was Erroneous. - In a juvenile proceedings, the trial court erred in accepting defendant's admission because the trial court failed to inquire whether defendant was satisfied with his representation, as required by G.S. 7B-2407(a), and the error was not harmless. In re T.E.F., 167 N.C. App. 1, 604 S.E.2d 348 (2004), aff'd, - N.C. - , 614 S.E.2d 296 (2005).

Addressing each of the six issues listed in G.S. 7B-2407(a) is mandatory and a "totality of the circumstances" standard of review is inapplicable; thus, a trial court committed reversible error in taking an admission from a juvenile in an adjudicatory hearing without specifically asking the juvenile if he was satisfied with his counsel as was required by G.S. 7B-2407(a). In re T.E.F., 359 N.C. 570, 614 S.E.2d 296 (2005).

Trial court's adjudication and disposition orders were reversed where there was no indication that it had informed a juvenile of his right to remain silent and the risk that any statements may be used against him or of his right to deny the allegations and as a result, it had failed to cover all of the six steps listed in G.S. 7B-2407(a). In re A.W., 182 N.C. App. 159, 641 S.E.2d 354 (2007).

Since the State failed to provide information in compliance with G.S. 7B-2407 to establish a factual basis for admitting defendant, a juvenile's, plea, as the prosecutor's statement of facts did not contain any statement or evidence that the pickup truck was worth more than $1,000, and the record included no written statement of defendant or sworn testimony or a statement of facts by his attorney that indicated that the truck was valued at more than $1,000, defendant's admission of guilt as to the stolen vehicle had to be vacated. In re D.C., 191 N.C. App. 246, 662 S.E.2d 570 (2008).

Custodial Term Greater in Disposition Than That in Admission Transcript. - Trial court erred in not advising appellant, a juvenile, of the correct maximum custodial confinement and in entering an order where the maximum custodial confinement was greater than that allowed for in the admission transcript; appellant had agreed to a disposition confining him to a maximum term of his 19th birthday, not his 21st birthday. In re D.A.F., 179 N.C. App. 832, 635 S.E.2d 509 (2006).

Testimony as to Juvenile's Statements Properly Admitted. - Officer's testimony about juvenile defendant's statements was properly admitted under G.S. 7B-2407 and G.S. 8C-1, N.C. R. Evid. 801(d); the officer interviewed defendant with his mother present, defendant was not in custody, and the juvenile rights warning was read to defendant and his mother, who both signed a statement indicating they understood the rights. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757 (2008).

Plea Knowingly Entered. - Record affirmatively showed on its face defendant juvenile's plea was knowingly and voluntarily entered; the trial court not only addressed all six prongs in the statute, but broke down the language for the juvenile to better comprehend and respond affirmatively to the questions. The juvenile was fully informed of the rights he waived and he signed the form agreement after the trial court had explained his rights to him while represented by counsel. In re W.M.C.M., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Adjudication Reversed. - Juvenile adjudication was reversed because, inter alia, the trial court erred by failing to inform defendant of most restrictive disposition on charge before accepting his admission. In re N.J., 221 N.C. App. 427, 728 S.E.2d 9 (2012).

Applied in State v. Rivens, 198 N.C. App. 130, 679 S.E.2d 145 (2009); In re C.L., 217 N.C. App. 109, 719 S.E.2d 132 (2011).

Cited in Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000); In re Wilson, 153 N.C. App. 196, 568 S.E.2d 862 (2002); In re J.A.G., 206 N.C. App. 318, 696 S.E.2d 809 (2010); In re J.R.V., 212 N.C. App. 205, 710 S.E.2d 411 (2011).


§ 7B-2408. Rules of evidence.

If the juvenile denies the allegations of the petition, the court shall proceed in accordance with the rules of evidence applicable to criminal cases. In addition, no statement made by a juvenile to the juvenile court counselor during the preliminary inquiry and evaluation process shall be admissible prior to the dispositional hearing.

History

(1979, c. 815, s. 1; 1981, ch. 469, s. 17; 1998-202, s. 6; 2001-490, s. 2.17.)

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

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).

Applied in In re Z.A.K., 189 N.C. App. 354, 657 S.E.2d 894 (2008), review denied, 362 N.C. 682, 671 S.E.2d 532 (2008), review dismissed, as moot, 362 N.C. 682, 671 S.E.2d 533 (2008).

Cited in In re Wilson, 153 N.C. App. 196, 568 S.E.2d 862 (2002); In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).


§§ 7B-2408.1 through 7B-2408.4: Reserved for future codification purposes.

§ 7B-2408.5. Motion to suppress evidence in adjudicatory hearings; procedure; appeal.

  1. A motion to suppress evidence in court made before the adjudicatory hearing must be in writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made. The motion must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated. The State may file an answer denying or admitting any of the allegations. A copy of the answer must be served on the juvenile's counsel or the juvenile's parent, guardian, or custodian, if the juvenile has no counsel.
  2. The judge must summarily grant the motion to suppress evidence if:
    1. The motion complies with the requirements of subsection (a) of this section, it states grounds which require exclusion of the evidence, and the State concedes the truth of allegations of fact which support the motion; or
    2. The State stipulates that the evidence sought to be suppressed will not be offered in evidence in any juvenile proceeding.
  3. The judge may summarily deny the motion to suppress evidence if:
    1. The motion does not allege a legal basis for the motion; or
    2. The affidavit does not as a matter of law support the ground alleged.
  4. If the motion is not determined summarily, the judge must make the determination after a hearing and finding of facts. Testimony at the hearing must be under oath.
  5. A motion to suppress made during the adjudicatory hearing may be made in writing or orally and may be determined in the same manner as when made before the adjudicatory hearing.
  6. The judge must set forth in the record his or her findings of facts and conclusions of law.
  7. An order finally denying a motion to suppress evidence may be reviewed upon an appeal of a final order of the court in a juvenile matter.
  8. The provisions of G.S. 15A-974 shall apply to this section.

History

(2015-58, s. 1.4.)

Editor's Note. - Session Laws 2015-58, s. 4, made this section, as enacted by Session Laws 2015-58, s. 1.4, applicable to offenses committed on or after December 1, 2015.

§ 7B-2409. Quantum of proof in adjudicatory hearing.

The allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt. The allegations in a petition alleging undisciplined behavior shall be proved by clear and convincing evidence.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

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 proper quantum of proof in a juvenile hearing to determine delinquency is proof beyond a reasonable doubt. In re Johnson, 32 N.C. App. 492, 232 S.E.2d 486 (1977), decided under former G.S. 7A-285.

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).

Adjudication order contained an ambiguity that could not be resolved as to the standard of proof used for purposes of G.S. 7B-2409 and G.S. 7B-2411 because in its findings after a juvenile delinquency adjudication hearing, the trial court correctly stated the burden of proof as proof proven beyond a reasonable doubt, but in the portion of the order that referenced an assault inflicting serious injury, a clear, cogent and convincing evidence burden of proof was stated. In re C.B., 187 N.C. App. 803, 654 S.E.2d 21 (2007).

Trial court did not err in failing to adjudicate a juvenile delinquent based on proof beyond a reasonable doubt because the adjudication order stated that the facts were proven beyond a reasonable doubt; although the trial court ultimately determines the existence of proof beyond a reasonable doubt of a respondent's guilt, in considering a motion to dismiss, the evidence is examined in the light most favorable to the State. In re S.M., 190 N.C. App. 579, 660 S.E.2d 653 (2008).

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).

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).

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).

Trial Court Must Unequivocally State Standard of Proof Used in Adjudication Order. - Case was remanded for clarification of the standard of proof used in the order adjudicating a juvenile defendant delinquent for committing indecent liberties between children, in violation of G.S. 14-202.2, because the trial court did not unequivocally state that it found the facts underlying the adjudication order to be true beyond a reasonable doubt, as required under G.S. 7B-2411. In re B.E., 186 N.C. App. 656, 652 S.E.2d 344 (2007).

Oral Finding Sufficient - Where the trial court, in juvenile proceedings, orally made its G.S. 7B-2409 finding that defendant, beyond a reasonable doubt, engaged in the acts alleged, but the trial court did not include this finding in the written adjudication order, the oral finding was sufficient to satisfy the G.S. 7B-2411 requirement that the finding be stated; G.S. 7B-2512 required the findings in the dispositional order, but not the adjudicatory order, to be in writing. In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

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).

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 G.S. 7B-2410) 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).

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).

Juvenile Admission. - Where a juvenile's court supervision was revoked for probation violations, it was not error to fail to make the specific inquiries enumerated in G.S. 7B-2407, because G.S. 7B-2407 did not apply to the juvenile's admission, or admissions by the juvenile through the juvenile's attorney, that the juvenile violated conditions of court supervision. In re D.J.M., 181 N.C. App. 126, 638 S.E.2d 610 (2007).

Applied in In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

Cited in In re Eades, 143 N.C. App. 712, 547 S.E.2d 146 (2001); In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011); In re K.M.M., 242 N.C. App. 25, 774 S.E.2d 430 (2015).


§ 7B-2410. Record of proceedings.

All adjudicatory and dispositional hearings and hearings on probable cause and transfer to superior court 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.)

CASE NOTES

Transcript Sufficient for Appellate Review - Juvenile's claim that the recording of the juvenile proceedings on four-track audio equipment was inadequate to protect the juvenile's rights had to be rejected as the transcript of the proceedings was sufficient to provide for meaningful appellate review, which is all that was required. In re Hartsock, 158 N.C. App. 287, 580 S.E.2d 395 (2003).

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) (decided prior to enactment of this chapter).

Applied in In re Lineberry, 154 N.C. App. 246, 572 S.E.2d 229 (2002).


§ 7B-2411. Adjudication.

If the court finds that the allegations in the petition have been proved as provided in G.S. 7B-2409, the court shall so state in a written order of adjudication, which shall include, but not be limited to, the date of the offense, the misdemeanor or felony classification of the offense, and the date of adjudication. If the court finds that the allegations have not been proved, the court shall dismiss the petition with prejudice and the juvenile shall be released from secure or nonsecure custody if the juvenile is in custody.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2009-545, s. 4.)

Effect of Amendments. - Session Laws 2009-545, s. 4, effective December 1, 2009, and applicable to adjudications of delinquency entered on or after that date, added "a written order of adjudication, which shall include, but not be limited to, the date of the offense, the misdemeanor or felony classification of the offense, and the date of adjudication" at the end of the first sentence.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Exact Form Not Required. - No statute or case requires this exact form, Arraignment Order and the Transcript of Admission by Juvenile Form, to be used in a juvenile delinquency case. In re W.M.C.M., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

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).

Oral Finding Sufficient - Where the trial court, in juvenile proceedings, orally made its G.S. 7B-2409 finding that defendant, beyond a reasonable doubt, engaged in the acts alleged, but the trial court did not include this finding in the written adjudication order, the oral finding was sufficient to satisfy the G.S. 7B-2411 requirement that the finding be stated; G.S. 7B-2512 required the findings in the dispositional order, but not the adjudicatory order, to be in writing. In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

Given the trial court's findings that were attached to the adjudication and the conclusion that defendant juvenile was delinquent, the court rejected the defendant's argument that the trial court failed to find that the defendant committed a misdemeanor beyond a reasonable doubt. In re M.J.G., 234 N.C. App. 350, 759 S.E.2d 361 (2014).

Insufficient Findings. - Trial court erred by failing to include the requisite findings in its juvenile delinquency adjudication order because the adjudication order failed to address any of the allegations as required by G.S. 7B-2411, and did not even summarily aver that the allegations in the petition had been proved, which was a minimum requirement. In re J.V.J., 209 N.C. App. 737, 707 S.E.2d 636 (2011).

Correction of Written Order Necessary - In a juvenile delinquency proceeding, a trial court's oral findings as to whether the State had proved the allegations against a juvenile sufficed; however, the written order had to be corrected so that the record reflected the finding. In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

Because the trial court made a clerical error by failing to mark the appropriate box in the conclusion of law section of the pre-printed form portion of the order to designate the offense as violent, serious, or minor, the matter was remanded for correction of the error; the trial court properly designated the offense as a Class 2 misdemeanor but simply neglected to mark the appropriate box to again identify the offense in the conclusion of law section. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696 (2018).

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).

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 Must Unequivocally State Standard of Proof Used in Adjudication Order. - Case was remanded for clarification of the standard of proof used in the order adjudicating a juvenile defendant delinquent for committing indecent liberties between children, in violation of G.S. 14-202.2, because the trial court did not unequivocally state that it found the facts underlying the adjudication order to be true beyond a reasonable doubt, as required under G.S. 7B-2411. In re B.E., 186 N.C. App. 656, 652 S.E.2d 344 (2007).

Standard of Proof Beyond a Reasonable Doubt. - Trial court did not err in failing to adjudicate a juvenile delinquent based on proof beyond a reasonable doubt because the adjudication order stated that the facts were proven beyond a reasonable doubt; although the trial court ultimately determines the existence of proof beyond a reasonable doubt of a respondent's guilt, in considering a motion to dismiss, the evidence is examined in the light most favorable to the State. In re S.M., 190 N.C. App. 579, 660 S.E.2d 653 (2008).

Ambiguity as to Burden of Proof. - Adjudication order contained an ambiguity that could not be resolved as to the standard of proof used for purposes of G.S. 7B-2409 and G.S. 7B-2411 because in its findings after a juvenile delinquency adjudication hearing, the trial court correctly stated the burden of proof as proof proven beyond a reasonable doubt, but in the portion of the order that referenced an assault inflicting serious injury, a clear, cogent and convincing evidence burden of proof was stated. In re C.B., 187 N.C. App. 803, 654 S.E.2d 21 (2007).

Self-Defense Not Grounds for Dismissal. - Trial court did not err in failing to dismiss a juvenile adjudication petition because the juvenile's claim of self-defense was not cause to dismiss the proceeding. In re Wilson, 153 N.C. App. 196, 568 S.E.2d 862 (2002).

Failure To Include Findings Of Fact In Written Adjudication. - Trial court's delinquent adjudication was vacated because the trial court erred by failing to include the requisite findings of fact in its written adjudication order pursuant to G.S. 7B-2411; the trial court is required to include the standard of proof in its written adjudication order pursuant to G.S. 7B-2411. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

Minimum Requirements of Adjudication Satisfied. - Defendant juvenile's adjudication of delinquency for simple assault satisfied the minimum requirements of G.S. 7B-2411 because it provided the date of the offense, the fact that the assault was a class 2 misdemeanor, the date of the adjudication, and clearly stated that the court considered the evidence and adjudicated defendant delinquent as to the petition's allegation of simple assault beyond a reasonable doubt. In re K.C., 226 N.C. App. 452, 742 S.E.2d 239 (2013), review denied, 747 S.E.2d 530, 2013 N.C. LEXIS 786 (2013).

In a juvenile case, a trial court made findings of fact that complied with this statute where it found that the allegations had been proved beyond a reasonable doubt and stated so in its written adjudication order. The trial court found that it was proved beyond a reasonable doubt that on or about the date of October 16, 2013, respondent, a juvenile, did unlawfully and willfully steal, take, and carry away a cellphone with a pink and gray otter box case, the personal property of the victim having a value of $300.00. In re K.M.M., 242 N.C. App. 25, 774 S.E.2d 430 (2015).

Trial court's adjudication order satisfied the statute because disorderly conduct was identified as the type of offense, and the date of the offense and the date the petition was filed were listed; the adjudication order contained delinquency hearing as the type of proceeding, the trial judge's signature, and date and proof of filing, and it also included a description of defendant juvenile's specific conduct and made the subsequent conclusion of law indicating delinquency. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696 (2018).

Adjudication Order Met Statutory Requirements. - Adjudication order of delinquency met and contained all requirements of the statute, as the order was written, indicated the date of the offenses, the felony classification of the offenses, and the date of adjudication, and contained factual findings including the juvenile's affirmative admission of responsibility. In re W.M.C.M., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Cited in In re Eades, 143 N.C. App. 712, 547 S.E.2d 146 (2001).


§ 7B-2412. Legal effect of adjudication of delinquency.

An adjudication that a juvenile is delinquent or commitment of a juvenile to the Division for placement in a youth development center shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2000-137, s. 3; 2001-95, s. 5; 2011-145, s. 19.1( l ).)

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department."

CASE NOTES

Use of defendant's prior juvenile adjudication as an aggravator was improper since it was not a prior conviction, not admitted by defendant, and not proven to a jury beyond a reasonable doubt. State v. Yarrell, 172 N.C. App. 135, 616 S.E.2d 258 (2005).


§ 7B-2413. Predisposition investigation and report.

The court shall proceed to the dispositional hearing upon receipt of the predisposition report. A risk and needs assessment, containing information regarding the juvenile's social, medical, psychiatric, psychological, and educational history, as well as any factors indicating the probability of the juvenile committing further delinquent acts, shall be conducted for the juvenile and shall be attached to the predisposition report. In cases where no predisposition report is available and the court makes a written finding that a report is not needed, the court may proceed with the dispositional hearing. No predisposition report or risk and needs assessment of any child alleged to be delinquent or undisciplined shall be made prior to an adjudication that the juvenile is within the juvenile jurisdiction of the court unless the juvenile, the juvenile's parent, guardian, or custodian, or the juvenile's attorney files a written statement with the juvenile court counselor granting permission and giving consent to the predisposition report or risk and needs assessment. No predisposition report shall be submitted to or considered by the court prior to the completion of the adjudicatory hearing. The court shall permit the juvenile to inspect any predisposition report, including any attached risk and needs assessment, to be considered by the court in making the disposition unless the court determines that disclosure would seriously harm the juvenile's treatment or rehabilitation or would violate a promise of confidentiality. Opportunity to offer evidence in rebuttal shall be afforded the juvenile and the juvenile's parent, guardian, or custodian at the dispositional hearing. The court may order counsel not to disclose parts of the report to the juvenile or the juvenile's parent, guardian, or custodian if the court finds that disclosure would seriously harm the treatment or rehabilitation of the juvenile or would violate a promise of confidentiality given to a source of information.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1999-423, s. 13; 2001-490, s. 2.18.)

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 For State. - Trial court did not abuse its discretion by ordering juvenile into custody and continuing his disposition hearing with regard to charges of breaking and entering, trespass, and injury to real property, because a fourth charge arose during the juvenile's adjudication hearing as he was seen by a court counselor mouthing the words "I'm going to kick your ass" to a witness who had just testified against him; therefore, the State was entitled to more time to prepare since the fourth charge of intimidating a witness was added. In re R.D.R., 175 N.C. App. 397, 623 S.E.2d 341 (2006), review denied, 361 N.C. 219, 642 S.E.2d 447 (2007).

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).

Trial court did not abuse its discretion in denying a juvenile's motion to continue his dispositional hearing in order to obtain a four-year-old psychological evaluation that was not included in the juvenile's court file under circumstances in which the juvenile's more recent psychological information was included in his juvenile-family data sheet. In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660 (2007).

Trial Court Did Not Receive Or Consider Risk and Needs Assessments. - Trial court violated G.S. 7B-2413 where it received and considered the dispositional report, but neither the risk assessment nor the needs assessment was attached to the predisposition report, and the trial court neither received nor considered the risk and needs assessments. In re E.K.H., 226 N.C. App. 448, 739 S.E.2d 613 (2013).

Trial Court Failed To Include Findings Of Fact In Dispositional Order. - Trial court failed to follow the procedure contemplated by G.S. 7B-2413, G.S. 7B-2501, and G.S. 7B-2512 for dispositional hearings because it failed to include the requisite findings of fact in its dispositional order; regarding the dispositional hearing, the trial court must conclude the adjudication stage of the proceedings, receive the predisposition report, then proceed to the dispositional hearing. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

Harmless Error. - Trial court's failure to receive or consider the risk and needs assessments as required by G.S. 7B-2413 before entering a dispositional order was harmless under G.S. 15A-1443 as defendant juvenile was not prejudiced because a report was considered that contained much of the information contemplated by G.S. 7B-2413, including information regarding defendant's court history, social, medical, psychiatric, psychological, and educational history, psychiatric diagnoses and prescriptions, behavior and gang involvement was considered; the report also contained information on defendant's school suspensions and an indication of the probability of defendant committing further delinquent acts. In re E.K.H., 226 N.C. App. 448, 739 S.E.2d 613 (2013).


§ 7B-2414. When jeopardy attaches.

Jeopardy attaches in an adjudicatory hearing when the court begins to hear evidence.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Editor's Note. - The following cases were decided prior to the enactment of this Chapter.

Juvenile Not Placed in Jeopardy Where Only Probable Cause Determined. - Where there was only a determination of probable cause in a hearing before the district court, even though the district court order referred to the hearing as having been adjudicatory and dispositional, the juveniles were not placed in jeopardy by the hearing in the district court before the case's transfer to the superior court. In re Bullard, 22 N.C. App. 245, 206 S.E.2d 305, appeal dismissed, 285 N.C. 758, 209 S.E.2d 279 (1974), decided under former G.S. 7A-280.

A probable cause hearing does not suffice to place a juvenile in jeopardy; it may not be equated with an adjudicatory hearing where jeopardy attaches when the judge begins to hear evidence. In re Stedman, 305 N.C. 92, 286 S.E.2d 527 (1982), overruled on other grounds, State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996).


ARTICLE 25. Dispositions.

Sec.

§ 7B-2500. 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, including the protection of the public. The court should develop a disposition in each case that:

  1. Promotes public safety;
  2. Emphasizes accountability and responsibility of both the parent, guardian, or custodian and the juvenile for the juvenile's conduct; and
  3. Provides the appropriate consequences, treatment, training, and rehabilitation to assist the juvenile toward becoming a nonoffending, responsible, and productive member of the community.

History

(1979, c. 815, s. 1; 1995 (Reg. Sess., 1996), c. 609, s. 1; 1998-202, s. 6.)

Editor's Note. - Session Laws 2011-145, s. 17.8, provides: "The Department of Juvenile Justice and Delinquency Prevention [Division of Juvenile Justice] shall report by October 1 of each year to the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety, the Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight Committee, and the Fiscal Research Division on the Youth Development Center (YDC) population, staffing, and capacity in the preceding fiscal year. Specifically, the report shall include all of the following:

"(1) The on-campus population of each YDC, including the county the juveniles are from.

"(2) The housing capacity of each YDC.

"(3) A breakdown of staffing for each YDC, including number, type of position, position title, and position description.

"(4) The per-bed and average daily population cost for each facility.

"(5) The operating cost for each facility, including personnel and nonpersonnel items.

"(6) A brief summary of the treatment model, education, services, and plans for reintegration into the community offered at each facility.

"(7) The average length of stay in the YDCs.

"(8) The number of incidents of assaults/attacks on staff at each facility."

Session Laws 2011-145, s. 17.9, provides: "The Department of Juvenile Justice and Delinquency Prevention [Division of Juvenile Justice] shall report electronically on the first day of each month to the Fiscal Research Division regarding each juvenile correctional facility and the average daily population for the previous month. The report shall include (i) the average daily population for each detention center and (ii) the monthly summary of the Committed Youth Report."

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.

Session Laws 2015-241, s. 16A.4, provides: "The former juvenile detention facility known as Samarkand Manor, located in Moore County, is redesignated a law enforcement and corrections training facility and assigned to the Office of the Secretary of the Department of Public Safety. The facility shall be renamed Samarcand Training Academy and shall be administered by a Director. The operating budget for Samarcand Training Academy shall be funded by the Department of Public Safety but shall be independent of the operating budget of any Division within the Department and shall be managed and administered by the Director of the Academy with oversight by the Office of the Secretary of the Department of Public Safety."

Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium."

Session Laws 2015-241, s. 33.6, is 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 empirical study, "The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System," see 40 Wake Forest L. Rev. 727 (2005).

For article, "Recent Development: Long-Term Suspension and the Right to an Education: An Alternative Approach," 90 N.C.L. Rev. 293 (2011).

For article, "Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration: Race and Reform: A Missed Opportunity for Meaningful Impact and Potential Remedies," see 51 Wake Forest L. Rev. 545 (2016).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Continuance For the State. - Trial court did not abuse its discretion by ordering a juvenile into custody and continuing his disposition hearing with regard to charges of breaking and entering, trespass, and injury to real property, because a fourth charge arose during the juvenile's adjudication hearing as he was seen by a court counselor mouthing the words "I'm going to kick your ass" to a witness who had just testified against him, therefore, the State was entitled to more time to prepare since the fourth charge of intimidating a witness was added. In re R.D.R., 175 N.C. App. 397, 623 S.E.2d 341 (2006), review denied, 361 N.C. 219, 642 S.E.2d 447 (2007).

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).

Juvenile's dispositional order did not err for not considering statutory factors because (1) G.S. 7B-2512 did not require findings on those factors, and (2) the court considered the factors, as finding a robbery with a dangerous weapon adjudication showed the crime's seriousness was considered, findings of repeated probation violations showed a need to hold the juvenile accountable was considered, findings of the juvenile's adjudication for armed robbery and school suspension for fighting showed public protection was considered, findings of how the juvenile violated probation showed degree of culpability was considered, and finding the juvenile's failure to obtain treatment showed treatment needs were considered. In re D.E.P., 251 N.C. App. 752, 796 S.E.2d 509 (2017).

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).

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).

Cited in In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001); In re Jones, (N.C. App. Aug. 7, 2001); In re Robinson, 151 N.C. App. 733, 567 S.E.2d 227 (2002); In re Z.A.K., 189 N.C. App. 354, 657 S.E.2d 894 (2008), review denied, 362 N.C. 682, 671 S.E.2d 532 (2008), review dismissed, as moot, 362 N.C. 682, 671 S.E.2d 533 (2008); In re D.S., 364 N.C. 184, 694 S.E.2d 758 (2010); In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010); In re K.L.D., 210 N.C. App. 747, 709 S.E.2d 409 (2011); In re R.D., 243 N.C. App. 61, 776 S.E.2d 685 (2015).


§ 7B-2501. Dispositional hearing.

  1. The dispositional hearing may be informal, and the court may consider written reports or other evidence concerning the needs of the juvenile. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.
  2. The juvenile and the juvenile's parent, guardian, or custodian shall have an opportunity to present evidence, and they may advise the court concerning the disposition they believe to be in the best interests of the juvenile.
  3. In choosing among statutorily permissible dispositions, the court shall select the most appropriate disposition both in terms of kind and duration for the delinquent juvenile. Within the guidelines set forth in G.S. 7B-2508, the court shall select a disposition that is designed to protect the public and to meet the needs and best interests of the juvenile, based upon:
    1. The seriousness of the offense;
    2. The need to hold the juvenile accountable;
    3. The importance of protecting the public safety;
    4. The degree of culpability indicated by the circumstances of the particular case; and
    5. The rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.
  4. The court may dismiss the case, or continue the case for no more than six months in order to allow the family an opportunity to meet the needs of the juvenile through more adequate home supervision, through placement in a private or specialized school or agency, through placement with a relative, or through some other plan approved by the court.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 18; 1998-202, s. 6; 2003-62, s. 5.)

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

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).

Trial Court Must Consider Each Factor in Subsection (c). - In re D.E.P., N.C. App. 796 S.E.2d 509, 514 (2017), created a direct conflict in the area of the law by deviating from precedent; where there is a conflicting line of cases, a panel of this Court should follow the older of those two lines; accordingly, a trial court must consider each of the factors in subsection (c) when entering a dispositional order. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696 (2018).

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).

Determination of Delinquency History Points by Stipulation to a Report. - Trial court properly determined a juvenile's delinquency history points, pursuant to G.S. 7B-2507(f), because the juvenile stipulated to the court counselor's report, which listed the juvenile's prior adjudications, as the juvenile's attorney received and reviewed the report and failed to object to it. Additionally, the juvenile did not assert in the juvenile's appellate brief that any of the prior adjudications listed in the report did not, in fact, exist. In re DRH, 194 N.C. App. 166, 668 S.E.2d 919 (2008).

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).

Admissibility of Post-petition Occurrences. - Post-petition occurrences were admissible in child neglect proceedings, based on mother's continuing alcohol abuse problems, because the trial court held the adjudication and disposition hearings at the same time, and the mother's post-petition activities reflected on the best interests of the children. Powers v. Powers, 130 N.C. App. 37, 502 S.E.2d 398 (1998).

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).

Failure to Hold Dispositional Hearing Within Six Months. - In juvenile proceedings, a trial court did not lose jurisdiction because it failed to hold a dispositional hearing within six months; instead, the proper interpretation of G.S. 7B-2501(d) was that appellant juvenile's family had a six-month window of time to meet appellant's needs without a court-ordered disposition. In re S.S., 193 N.C. App. 239, 666 S.E.2d 870 (2008).

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).

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).

Trial court did not abuse its discretion in denying a juvenile's motion to continue his dispositional hearing in order to obtain a four-year-old psychological evaluation that was not included in the juvenile's court file under circumstances in which the juvenile's more recent psychological information was included in his juvenile-family data sheet. In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660 (2007).

Trial court abused its discretion by denying a juvenile's motion to continue the disposition because the juvenile had a right under G.S. 7B-2901(b) to access additional records, and the trial court should have granted the motion to continue in order to give the juvenile an opportunity to gather evidence for his disposition hearing. In re J.L., 199 N.C. App. 605, 685 S.E.2d 11 (2009).

Burden on Parents and Department. - The language of G.S. 7A-640 (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).

Failure of Court to Question Parents. - The trial court did not deny the parents of a juvenile their right to "present evidence" and "advise the court concerning the disposition they believe to be in the best interests of the juvenile" when, after they were tendered to the trial court, the trial court did not question them; the trial court's decision not to question them did not constitute a refusal to allow them to present evidence or to advise the trial court regarding the appropriate disposition. In re Powers, 144 N.C. App. 140, 546 S.E.2d 186 (2001).

Consideration of Parent's Testimony. - Assuming arguendo that defendant juvenile was correct in the defendant's contention that the trial court decided the terms of the defendant's disposition prior to allowing the defendant's mother to be heard, the error was harmless based on the fact that the mother did not object to the condition of attending classes but effectively agreed with the trial court. In re M.J.G., 234 N.C. App. 350, 759 S.E.2d 361 (2014).

Evidence Did Not Support Transfer of Custody. - Findings of fact in a dispositional order in a delinquency case did not support a trial court's decision to transfer custody of defendant from his mother to his father, and that part of the dispositional order was reversed where the evidence in the record failed to support a finding that placement with the father was in defendant's best interests; the record indicated that defendant had no contact with his father for approximately seven to eight months immediately prior to the assault for which defendant was on trial, the court counselor did not recommend placement with the father and instead advised the court to utilize family services if defendant needed more structure during the day, and it appeared that the trial court based the decision to award custody to the father solely on defendant's school absences. In re Ferrell, 162 N.C. App. 175, 589 S.E.2d 894 (2004).

Failure to preserve objection to juvenile dispositional hearing, even acknowledging the informality allowed in a dispositional hearing, the record gave no indication that juvenile defendant contested the continuance of the dispositional hearing on the grounds that a sex offender specific evaluation was unavailable; defendant was procedurally barred from asserting this argument on appeal. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757 (2008).

Trial court properly exercised its discretion in accord with G.S. 7B-2501(c) when it allowed a juvenile adjudicated delinquent on the basis of first-degree rape to work off campus but not come into contact with anyone aged 25 or younger; such a disposition balanced the importance of protecting the public with the juvenile's rehabilitative needs. In re J.S.W., 211 N.C. App. 620, 711 S.E.2d 471 (2011).

Level 3 Disposition Proper. - Where juvenile defendant was adjudicated delinquent for having committed assault with a deadly weapon inflicting serious injury, and defendant's delinquency history level was determined to have been low, the trial court had the authority to impose either a level 2 or level 3 disposition, and it was within the trial court's discretion to determine which dispositional alternative to impose; where defendant failed to return to school at the end of her five-day suspension, was absent from school for more than 100 days, and where the record revealed that the trial court had before it undisputed evidence that both defendant and her mother knew that defendant was eligible to return to school after the five-day suspension, but were unable to offer an explanation for defendant's failure to return to school, defendant failed to show that the trial court's decision to impose a level 3 disposition amounted to an abuse of discretion. In re N.B., 167 N.C. App. 305, 605 S.E.2d 488 (2004).

Juvenile's level 3 disposition was not an abuse of discretion because the juvenile continued to violate probation after being given another chance to continue on a level 2 disposition. In re D.E.P., 251 N.C. App. 752, 796 S.E.2d 509 (2017).

Probationary Conditions Proper. - Probationary conditions in juvenile defendant's manslaughter adjudication that required defendant to visit and put flowers on the victim's grave site, wear a necklace with the victim's picture, and not participate in certain school functions and activities, did not require publicizing defendant's records or present defendant with the choice of staying at home or enduring public ridicule and were not improper; the trial court was cognizant of a psychologist's findings concerning defendant's below average cognitive functioning, but did not afford this evidence as much weight as the other evidence of defendant's actions prior to, during, and after his delinquent act, and the trial court properly considered the evidence before it. In re J.B., 172 N.C. App. 747, 616 S.E.2d 385 (2005), aff'd, 360 N.C. 165, 622 S.E.2d 495 (2005).

Trial Court Failed To Include Findings Of Fact In Dispositional Order. - Trial court failed to follow the procedure contemplated by G.S. 7B-2413, G.S. 7B-2501, and G.S. 7B-2512 for dispositional hearings because it failed to include the requisite findings of fact in its dispositional order; regarding the dispositional hearing, the trial court must conclude the adjudication stage of the proceedings, receive the predisposition report, then proceed to the dispositional hearing. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

District court failed to enter its disposition in accordance with G.S. 7B-2501(c) and G.S. 7B-2512 where, assuming arguendo that the court's categorization of defendant juvenile's simple assault offense as minor and its statement that defendant needed to learn the significance of victimizing people and the consequences of that, sufficiently addressed the first two G.S. 7B-2501(c) factors, it did not consider the last three factors, including the importance of protecting the public safety, the degree of culpability indicated by the circumstances of the case, and the rehabilitative and treatment needs of the juvenile based on a risk and needs assessment. In re K.C., 226 N.C. App. 452, 742 S.E.2d 239 (2013), review denied, 747 S.E.2d 530, 2013 N.C. LEXIS 786 (2013).

Dispositional order was deficient because although the trial court addressed three of the factors set forth in subsection (c), it did not consider each factor in that section; the form order specifically instructed the trial court to list any additional findings regarding the subsection (c) factors if they were not found elsewhere in the order or incorporated documents, and the supplemental reports and assessments did not address these factors. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696 (2018).

Findings Sufficient. - Sufficient factual findings were made in a dispositional order concerning appellant, a juvenile, because the trial court found, beyond a reasonable doubt, (1) crimes were premeditated and willful, (2) a sex crime was very serious, (3) the juvenile denied charges and said sex offender treatment would not benefit the juvenile, and the juvenile had attention deficit hyperactivity disorder symptoms, requiring a controlled environment, and (4) the juvenile's family's proximity to and relationship with the victim's family made the juvenile's release too dangerous. In re G.C., 230 N.C. App. 511, 750 S.E.2d 548 (2013).

Juvenile's dispositional order did not err for not considering statutory factors because (1) G.S. 7B-2512 did not require findings on those factors, and (2) the court considered the factors, as finding a robbery with a dangerous weapon adjudication showed the crime's seriousness was considered, findings of repeated probation violations showed a need to hold the juvenile accountable was considered, findings of the juvenile's adjudication for armed robbery and school suspension for fighting showed public protection was considered, findings of how the juvenile violated probation showed degree of culpability was considered, and finding the juvenile's failure to obtain treatment showed treatment needs were considered. In re D.E.P., 251 N.C. App. 752, 796 S.E.2d 509 (2017).

Trial court provided a thorough writing of its findings at the conclusion of the disposition hearing, addressing all factors in the statute; the findings illustrated the failures of the less restrictive placements and methods and defendant juvenile's need for commitment, and no abuse of discretion was shown. In re W.M.C.M., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Applied in In re V.M., 211 N.C. App. 389, 712 S.E.2d 213 (2011); In re A.J. M.-B., 212 N.C. App. 586, 713 S.E.2d 104 (2011); In re C.L., 217 N.C. App. 109, 719 S.E.2d 132 (2011).

Cited in In re D.A.F., 179 N.C. App. 832, 635 S.E.2d 509 (2006); In re K.L.D., 210 N.C. App. 747, 709 S.E.2d 409 (2011); In re P.Q.M., 232 N.C. App. 419, 754 S.E.2d 431 (2014); In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014); In re R.D., 243 N.C. App. 61, 776 S.E.2d 685 (2015).


§ 7B-2502. Evaluation and treatment of undisciplined and delinquent juveniles.

  1. In any case, 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. In the case of a juvenile adjudicated delinquent for committing an offense that involves the possession, use, sale, or delivery of alcohol or a controlled substance, the court shall require the juvenile to be tested for the use of controlled substances or alcohol within 30 days of the adjudication. In the case of any juvenile adjudicated delinquent, the court may, if it deems it necessary, require the juvenile to be tested for the use of controlled substances or alcohol. The results of these initial tests conducted pursuant to this subsection shall be used for evaluation and treatment purposes only. 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.
  2. 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 evaluation or treatment and who should pay the cost of the evaluation or treatment. The county manager, or any other person who is designated by the chair of the board of county commissioners, of the county of the juvenile's residence shall be notified of the hearing, and allowed to be heard. If the court finds the juvenile to be in need of medical, surgical, psychiatric, psychological, or other evaluation or treatment, the court shall permit the parent, guardian, custodian, or other responsible persons to arrange for evaluation or treatment. If the parent, guardian, or custodian declines or is unable to make necessary arrangements, the court may order the needed evaluation or treatment, surgery, or care, and the court may order the parent to pay the cost of the care pursuant to Article 27 of this Chapter. If the court finds the parent is unable to pay the cost of evaluation or treatment, the court shall order the county to arrange for evaluation or treatment of the juvenile and to pay for the cost of the evaluation or treatment. The county department of social services shall recommend the facility that will provide the juvenile with evaluation or treatment.
  3. If the court believes, or if there is evidence presented to the effect that the juvenile has a mental illness or a developmental disability, the court shall refer the juvenile to the area mental health, developmental disabilities, and substance abuse services director for appropriate action. A juvenile shall not be committed directly to a State hospital or State developmental center, and orders purporting to commit a juvenile directly to a State hospital or State developmental center, except for an examination to determine capacity to proceed, are void and of no effect. The area mental health, developmental disabilities, and substance abuse director is responsible for arranging an interdisciplinary evaluation of the juvenile and mobilizing resources to meet the juvenile's needs. If institutionalization is determined to be 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 institutionalization after it is recommended by the area mental health, developmental disabilities, and substance abuse director, the signature and consent of the court may be substituted for that purpose. In all cases in which a regional mental hospital refuses admission to a juvenile referred for admission by the court and an area mental health, developmental disabilities, and substance abuse director or discharges a juvenile previously admitted on court referral prior to completion of the juvenile's treatment, the hospital 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, 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.

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, s. 6; 2002-164, s. 4.9; 2019-76, s. 11.)

Editor's Note. - Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 11 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2019-76, s. 11, effective October 1, 2019, rewrote subsection (c).

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).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

1996 Amendment. - As the General Assembly recognized the need for participation by counties in the dispositional stage of a juvenile proceedings it amended subsection (3) of former G.S. 7A-286 to require the trial judge to notify a representative of the county and provide the representative an opportunity to be heard at a juvenile's dispositional hearing. In re D.R.D., 127 N.C. App. 296, 488 S.E.2d 842 (1997).

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).

"Cost of care" does not include counsel fees for juvenile, which are governed by former G.S. 7A-588 (see now G.S. 7B-603 and 7B-2002). In re Wharton, 54 N.C. App. 447, 283 S.E.2d 528 (1981), rev'd on other grounds, 305 N.C. 565, 290 S.E.2d 688 (1982).

Consecutive commitments are not contrary to the philosophy of the Juvenile Code. Such reasoning would mean that once a juvenile had been committed to a detention facility or training school (now youth development center) he would be free to commit whatever other illegal acts he so chose knowing that he could not receive any additional punishment for his action. This was not the intention of the legislature when it adopted the Juvenile Code. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

The Juvenile Code does not contain any provision which prohibits the commitment of a juvenile to consecutive terms of detention. Absent an express prohibition, the common-law rule that the courts have the authority to commit offenders to consecutive terms of confinement is controlling. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

Reasonable and Available Non-Statutory Alternatives. - Prior to committing a juvenile to the Division of Youth Services, the court must also consider any reasonable and available nonstatutory community-level alternatives. In re Mosser, 99 N.C. App. 523, 393 S.E.2d 308 (1990).

Intermediate Disposition Appropriate. - Level 2 intermediate disposition was proper in a juvenile case pursuant to G.S. 7B-2508(f) because appellant had 1 point for prior offenses and had a serious offense combined with a low delinquency level; ordered intermediate disposition, that appellant participate in a wilderness program, submit to intermittent confinement of 14 days in an approved detention facility, and perform 50 hours of community service, was within the range of statutorily permissible dispositions, and this decision was not manifestly unsupported by reason and within the discretion of the trial court. In re K.L.D., 210 N.C. App. 747, 709 S.E.2d 409 (2011).

Trial Court's Failure to Refer. - Trial court erred in failing to refer the defendant juvenile to the area mental health services director; the predisposition report referred to a clinical assessment, which diagnosed the juvenile with conduct disorder and recommended intensive outpatient services. In re E.A., - N.C. App. - , 833 S.E.2d 630 (2019).

Trial court erred in failing to refer a juvenile to the area mental health services director for appropriate action, as required by statute, before committing her to a youth development center (YDC) because the trial court was faced with evidence that the juvenile was mentally ill, the juvenile demonstrated a reasonable possibility that compliance with the statute and review of the required evaluation would have resulted in a different disposition, and the trial court lacked the opportunity to weigh any mental health care clinicians' reasoning against the State's recommendation for commitment to a YDC. In re A.L.B., - N.C. App. - , - S.E.2d - (Oct. 6, 2020).

Failure to Order Psychiatric Examination Precluded Commitment. - Where finding that juvenile was manic-depressive was supported only by a statement made to trial court by mother of the juvenile, this evidence of mental illness compelled further inquiry by trial court prior to entry of any final disposition; however, while trial court had authority to order a psychiatric examination of juvenile and gain advice of a medical specialist, he failed to utilize this community resource and such failure precludes commitment to the Division of Youth Services. In re Mosser, 99 N.C. App. 523, 393 S.E.2d 308 (1990).

Trial court erred in committing defendant to a youth development center and transferring his legal custody to the county department of social services because it failed to refer defendant to the area mental health services director after being presented with evidence that he was mentally ill, as required by statute; the trial court was presented with a plethora of evidence demonstrating that defendant was mentally ill. In re E.M., 263 N.C. App. 476, 823 S.E.2d 674 (2019), review denied, 2019 N.C. LEXIS 880 (2019).

Use of the word "shall" indicates a statutory mandate that the trial court refer the juvenile to the area mental health services director for appropriate action, and failure to do so is error; faced with any amount of evidence that a juvenile is mentally ill, a trial court has a statutory duty to refer the juvenile to the area mental health services director for appropriate action. In re E.M., 263 N.C. App. 476, 823 S.E.2d 674 (2019), review denied, 2019 N.C. LEXIS 880 (2019).

Statute envisions the area mental health services director's involvement in the juvenile's disposition and responsibility for arranging an interdisciplinary evaluation of the juvenile and mobilizing resources to meet the juvenile's needs. In re E.M., 263 N.C. App. 476, 823 S.E.2d 674 (2019), review denied, 2019 N.C. LEXIS 880 (2019).

Commitment of Juvenile to Training School (Now Youth Development Center) Held Proper. - Court exhausted all alternatives and properly committed a juvenile to training school (now youth development center) after the juvenile violated conditions of probation for second degree rape and taking indecent liberties with a child. In re Molina, 132 N.C. App. 373, 511 S.E.2d 679 (1999).

Cited in In re Braithwaite, 150 N.C. App. 434, 562 S.E.2d 897 (2002), cert. denied, 356 N.C. 162, 568 S.E.2d 187 (2002).

Opinions of Attorney General

Editor's Note. - The opinions below were rendered prior to the 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-2503. Dispositional alternatives for undisciplined juveniles.

The following alternatives for disposition shall be available to the court exercising jurisdiction over a juvenile who has been adjudicated undisciplined. 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. The court may combine any of the applicable alternatives when the court finds it to be in the best interests of the juvenile:

  1. In the case of any juvenile who needs more adequate care or supervision or who needs placement, the judge may do any of the following:
    1. Require that the juvenile be supervised in the juvenile's own home by a department of social services in the juvenile's county of residence, a juvenile court counselor, or other personnel as may be available to the court, subject to conditions applicable to the parent, guardian, or custodian or the juvenile as the judge may specify.
    2. Place the juvenile in the custody of a parent, guardian, custodian, relative, private agency offering placement services, or some other suitable person.
    3. If the director of the department of social services has received notice and an opportunity to be heard, place the juvenile in the custody of a department of social services in the county of the juvenile's residence, or in the case of a juvenile who has legal residence outside the State, in the physical custody of a 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. An order placing a juvenile in the custody or placement responsibility of a county department of social services shall contain a finding that the juvenile's continuation in the juvenile's own home would be contrary to the juvenile's best interest. This placement shall be reviewed in accordance with G.S. 7B-906.1. A parent who is indigent is entitled to court-appointed counsel for representation in the hearings held pursuant to G.S. 7B-906.1 unless the parent makes a knowing and voluntary waiver of the right to counsel.
  2. Place the juvenile under the protective supervision of a juvenile court counselor for a period of up to three months, with an extension of an additional three months in the discretion of the court.
  3. Excuse the juvenile from compliance with the compulsory school attendance law when the court finds that suitable alternative plans can be arranged by the family through other community resources for one of the following:
    1. An education related to the needs or abilities of the juvenile including vocational education or special education;
    2. A suitable plan of supervision or placement; or
    3. Some other plan that the court finds to be in the best interests 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, s. 6; 2001-208, s. 8; 2001-487, s. 101; 2001-490, s. 2.19; 2002-164, s. 4.10; 2009-311, s. 16; 2013-129, s. 39; 2017-161, s. 12; 2019-33, s. 15(a).)

Editor's Note. - Session Laws 2013-129, s. 41, made the amendment to sub-subdivision (1)c by Session Laws 2013-129, s. 39, applicable to actions filed or pending on or after October 1, 2013.

Effect of Amendments. - Session Laws 2009-311, s. 16, effective October 1, 2009, added "If the director of the department of social services has received notice and an opportunity to be heard" at the beginning of subdivision (1)c.

Session Laws 2013-129, s. 39, effective October 1, 2013, substituted "G.S. 7B-906.1" for "G.S. 7B-906" in the third sentence of sub-subdivision (1)c. For applicability, see editor's note.

Session Laws 2017-161, s. 12, effective October 1, 2017, deleted the former last four sentences of subdivision (1)c, which read: "The director may, unless otherwise ordered by the judge, arrange for, provide, or consent to, needed routine or emergency medical or surgical care or treatment. In the case where the parent is unknown, unavailable, or unable to act on behalf of the juvenile or juveniles, the director may, unless otherwise ordered by the judge, arrange for, provide or consent to any psychiatric, psychological, educational, or other remedial evaluations or treatment for the juvenile placed by a judge or the judge's designee in the custody or physical custody of a county department of social services under the authority of this or any other Chapter of the General Statutes. Prior to exercising this authority, the director shall make reasonable efforts to obtain consent from a parent, guardian, or custodian of the affected juvenile. If the director cannot obtain consent, the director shall promptly notify the parent, guardian, or custodian that care or treatment has been provided and shall give the parent, guardian, or custodian frequent status reports on the circumstances of the juvenile. Upon request of a parent, guardian, or custodian of the affected juvenile, the results or records of the aforementioned evaluations, findings, or treatment shall be made available to the parent, guardian, or custodian by the director unless prohibited by G.S. 122C-53(d)."

Session Laws 2019-33, s. 15(a), effective October 1, 2019, in subdivision (1), inserted "do any of the following" in the introductory paragraph, deleted "or" at the end paragraphs a. and b. and added the last sentence to paragraph c.

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).

CASE NOTES

Editor's Note. - The following cases were decided prior to the enactment of this Chapter.

There is no authorization in the statutes to grant legal and physical custody of a juvenile to the Willie M. Services Section of the Division of Mental Health, Developmental Disabilities and Substance Abuse Services, although juvenile's guardian ad litem argued that the Division of Youth Services, also a Division of the Department of Human Resources, is a "person" within the purview of former G.S. 7A-647. In re Autry, 115 N.C. App. 263, 444 S.E.2d 239 (1994), aff'd per curiam, 340 N.C. 95, 455 S.E.2d 155 (1995).

Consecutive commitments are not contrary to the philosophy of the Juvenile Code. Such reasoning would mean that once a juvenile had been committed to a detention facility or training school (now youth development center) he would be free to commit whatever other illegal acts he so chose knowing that he could not receive any additional punishment for his action. This was not the intention of the legislature when it adopted the Juvenile Code. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

The Juvenile Code does not contain any provision which prohibits the commitment of a juvenile to consecutive terms of detention. Absent an express prohibition, the common-law rule that the courts have the authority to commit offenders to consecutive terms of confinement is controlling. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

Participation of Parent in Assessment or Treatment. - Former G.S. 7A-650(b1) (see now G.S. 7B-904, 7B-2702 and 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).

Authority to Consider Privately Operated Facility. - Under former G.S. 7A-286, the trial court was not confined to a consideration only of government-operated resources, but had the authority to place an undisciplined child in a privately operated facility for an indefinite stay at the county's expense. In re Lambert, 46 N.C. App. 103, 264 S.E.2d 379 (1980).

Opinions of Attorney General

Editor's Note. - The opinions below were rendered prior to the 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-2504. Conditions of protective supervision for undisciplined juveniles.

The court may place a juvenile on protective supervision pursuant to G.S. 7B-2503 so that the juvenile court counselor may (i) assist the juvenile in securing social, medical, and educational services and (ii) visit and work with the family as a unit to ensure the juvenile is provided proper supervision and care. The court may impose any combination of the following conditions of protective supervision that are related to the needs of the juvenile, including:

  1. That the juvenile shall remain on good behavior and not violate any laws;
  2. That the juvenile attend school regularly;
  3. That the juvenile maintain passing grades in up to four courses during each grading period and meet with the juvenile court counselor and a representative of the school to make a plan for how to maintain those passing grades;
  4. That the juvenile not associate with specified persons or be in specified places;
  5. That the juvenile abide by a prescribed curfew;
  6. That the juvenile report to a juvenile court counselor as often as required by a juvenile court counselor;
  7. That the juvenile be employed regularly if not attending school; and
  8. That the juvenile satisfy any other conditions determined appropriate by the court.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2001-490, s. 2.20.)

CASE NOTES

Applied in In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001).


§ 7B-2505. Violation of protective supervision by undisciplined juvenile.

  1. On motion of the juvenile court counselor or the juvenile, or on the court's own motion, the court may review the progress of any juvenile on protective supervision at any time during the period of protective supervision. When the motion is filed during the period of protective supervision and either alleges a violation of protective supervision or seeks an extension of protective supervision as permitted by G.S. 7B-2503(2), the court's review may occur within a reasonable time after the period of protective supervision ends, and the court shall have jurisdiction to enter an order under this section. The conditions or duration of protective supervision may be modified only as provided in this Subchapter and only after notice and a hearing.
  2. If the court, after notice and a hearing, finds by the greater weight of the evidence that the juvenile has violated the conditions of protective supervision set by the court, the court may do one or more of the following:
    1. Continue or modify the conditions of protective supervision.
    2. Order any disposition authorized by G.S. 7B-2503.
    3. Notwithstanding the time limitation in G.S. 7B-2503(2), extend the period of protective supervision for up to three months.

History

(1998-202, s. 6; 2001-490, s. 2.21; 2012-172, s. 5.)

Effect of Amendments. - Session Laws 2012-172, s. 5, effective October 1, 2012, rewrote the section.

§ 7B-2506. Dispositional alternatives for delinquent juveniles.

The court exercising jurisdiction over a juvenile who has been adjudicated delinquent may use the following alternatives in accordance with the dispositional structure set forth in G.S. 7B-2508:

  1. In the case of any juvenile under the age of 18 years who needs more adequate care or supervision or who needs placement, the judge may do any of the following:
    1. Require that a juvenile be supervised in the juvenile's own home by the department of social services in the juvenile's county, a juvenile court counselor, or other personnel as may be available to the court, subject to conditions applicable to the parent, guardian, or custodian or the juvenile as the judge may specify.
    2. Place the juvenile in the custody of a parent, guardian, custodian, relative, private agency offering placement services, or some other suitable person.
    3. If the director of the county department of social services has received notice and an opportunity to be heard, place the juvenile in the custody of the department of social services in the county of the juvenile's residence, or in the case of a juvenile who has legal residence outside the State, in the physical custody of a 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. An order placing a juvenile in the custody or placement responsibility of a county department of social services shall contain a finding that the juvenile's continuation in the juvenile's own home would be contrary to the juvenile's best interest. This placement shall be reviewed in accordance with G.S. 7B-906.1. A parent who is indigent is entitled to court-appointed counsel for representation in the hearings held pursuant to G.S. 7B-906.1 unless the parent makes a knowing and voluntary waiver of the right to counsel.
  2. Excuse a juvenile under the age of 16 years from compliance with the compulsory school attendance law when the court finds that suitable alternative plans can be arranged by the family through other community resources for one of the following:
    1. An education related to the needs or abilities of the juvenile including vocational education or special education;
    2. A suitable plan of supervision or placement; or
    3. Some other plan that the court finds to be in the best interests of the juvenile.
  3. Order the juvenile to cooperate with a community-based program, an intensive substance abuse treatment program, or a residential or nonresidential treatment program. Participation in the programs shall not exceed 12 months.
  4. Require restitution, full or partial, up to five hundred dollars ($500.00), payable within a 12-month period to any person who has suffered loss or damage as a result of the offense committed by the juvenile. The court may determine the amount, terms, and conditions of the restitution. If the juvenile participated with another person or persons, all participants should be jointly and severally responsible for the payment of restitution; however, the court shall not require the juvenile to make restitution if the juvenile satisfies the court that the juvenile does not have, and could not reasonably acquire, the means to make restitution.
  5. Impose a fine related to the seriousness of the juvenile's offense. If the juvenile has the ability to pay the fine, it shall not exceed the maximum fine for the offense if committed by an adult.
  6. Order the juvenile to perform up to 100 hours supervised community service consistent with the juvenile's age, skill, and ability, specifying the nature of the work and the number of hours required. The work shall be related to the seriousness of the juvenile's offense and in no event may the obligation to work exceed 12 months.
  7. Order the juvenile to participate in the victim-offender reconciliation program.
  8. Place the juvenile on probation under the supervision of a juvenile court counselor, as specified in G.S. 7B-2510.
  9. Order that the juvenile shall not be licensed to operate a motor vehicle in the State of North Carolina for as long as the court retains jurisdiction over the juvenile or for any shorter period of time. The clerk of court shall notify the Division of Motor Vehicles of that order.
  10. Impose a curfew upon the juvenile.
  11. Order that the juvenile not associate with specified persons or be in specified places.
  12. Impose confinement on an intermittent basis in an approved detention facility. Confinement shall be limited to not more than five 24-hour periods, the timing and imposition of which is determined by the court in its discretion.
  13. Order the juvenile to cooperate with placement in a wilderness program.
  14. Order the juvenile to cooperate with placement in a residential treatment facility, an intensive nonresidential treatment program, an intensive substance abuse program, or in a group home other than a multipurpose group home operated by a State agency.
  15. Place the juvenile on intensive probation under the supervision of a juvenile court counselor.
  16. Order the juvenile to cooperate with a supervised day program requiring the juvenile to be present at a specified place for all or part of every day or of certain days. In determining whether to order a juvenile to a particular supervised day program, the court shall consider the structure and operations of the program and whether that program will meet the needs of the juvenile. The court also may require the juvenile to comply with any other reasonable conditions specified in the dispositional order that are designed to facilitate supervision.
  17. Order the juvenile to participate in a regimented training program.
  18. Order the juvenile to submit to house arrest.
  19. Suspend imposition of a more severe, statutorily permissible disposition with the provision that the juvenile meet certain conditions agreed to by the juvenile and specified in the dispositional order. The conditions shall not exceed the allowable dispositions for the level under which disposition is being imposed.
  20. Order that the juvenile be confined in an approved juvenile detention facility for a term of up to 14 24-hour periods, which confinement shall not be imposed consecutively with intermittent confinement pursuant to subdivision (12) of this section at the same dispositional hearing. The timing and imposition of this confinement shall be determined by the court in its discretion.
  21. Order the residential placement of a juvenile in a multipurpose group home operated by a State agency.
  22. Require restitution of more than five hundred dollars ($500.00), full or partial, payable within a 12-month period to any person who has suffered loss or damage as a result of an offense committed by the juvenile. The court may determine the amount, terms, and conditions of restitution. If the juvenile participated with another person or persons, all participants should be jointly and severally responsible for the payment of the restitution; however, the court shall not require the juvenile to make restitution if the juvenile satisfies the court that the juvenile does not have, and could not reasonably acquire, the means to make restitution.
  23. Order the juvenile to perform up to 200 hours supervised community service consistent with the juvenile's age, skill, and ability, specifying the nature of work and the number of hours required. The work shall be related to the seriousness of the juvenile's offense.
  24. Commit the juvenile to the Division for placement in a youth development center in accordance with G.S. 7B-2513 for a period of not less than six months.

History

(1979, c. 815, s. 1; 1981, c. 469, ss. 19, 20; 1985, c. 589, s. 5; c. 777, s. 1; 1985 (Reg. Sess., 1986), c. 863, s. 2; 1991, c. 353, s. 1; 636, s. 19(a); 1991 (Reg. Sess., 1992), c. 1030, s. 4; 1993, c. 369, s. 1; c. 462, s. 1; 1995 (Reg. Sess., 1996), c. 609, s. 3; 1997-516, s. 1A; 1998-202, s. 6; 1998-229, s. 6; 1999-444, s. 1; 2000-137, s. 3; 2001-95, s. 5; 2001-179, s. 2; 2001-208, s. 9; 2001-487, s. 101; 2001-490, s. 2.22; 2009-311, s. 17; 2011-145, s. 19.1( l ); 2013-129, s. 40; 2015-58, s. 3.2; 2017-57, s. 16D.4(g); 2017-161, s. 13; 2018-142, s. 23(b); 2019-33, s. 15(b).)

Editor's Note. - The references in subdivisions (8) and (24) to G.S. 7B-2510 and 7B-2513 were substituted for G.S. 7B-2509 and 7B-2512, respectively, following their recodification at the direction of the Revisor of Statutes.

Session Laws 2013-129, s. 41, made the amendment to sub-subdivision (1)c by Session Laws 2013-129, s. 40, applicable to actions filed or pending on or after October 1, 2013.

Session Laws 2015-58, s. 4, made the insertion of "and imposition" in subdivisions (12) and (20) of this section by Session Laws 2015-58, s. 3.2, applicable to offenses committed on or after December 1, 2015.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(g), inserted "under the age of 18 years” in the introductory paragraph of subdivision (1); and substituted "a juvenile under the age of 16 years” for "the juvenile” at the beginning of subdivision (2).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2009-311, s. 17, effective October 1, 2009, added "If the director of the county department of social services has received notice and an opportunity to be heard," at the beginning of subdivision (1)c.

Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in subdivision (24).

Session Laws 2013-129, s. 40, effective October 1, 2013, substituted "G.S. 7B-906.1" for "G.S. 7B-906" in the third sentence of sub-subdivision (1)c. For applicability, see editor's note.

Session Laws 2015-58, s. 3.2, effective December 1, 2015, inserted "and imposition" following "timing" in the second sentence of subdivisions (12) and (20). For applicability, see editor's note.

Session Laws 2017-57, s. 16D.4(g), inserted "under the age of 18 years" in the introductory paragraph of subdivision (1); and substituted "a juvenile under the age of 16 years" for "the juvenile" at the beginning of subdivision (2). For effective date and applicability, see editor's note.

Session Laws 2017-161, s. 13, effective October 1, 2017, in subdivision (1)c substituted "the juvenile's residence" for "his residence" in the first sentence, and deleted "The director may, unless otherwise ordered by the judge, arrange for, provide, or consent to, needed routine or emergency medical or surgical care or treatment. In the case where the parent is unknown, unavailable, or unable to act on behalf of the juvenile or juveniles, the director may, unless otherwise ordered by the judge, arrange for, provide or consent to any psychiatric, psychological, educational, or other remedial evaluations or treatment for the juvenile placed by a judge or the judge's designee in the custody or physical custody of a county department of social services under the authority of this or any other Chapter of the General Statutes. Prior to exercising this authority, the director shall make reasonable efforts to obtain consent from a parent, guardian, or custodian of the affected juvenile. If the director cannot obtain consent, the director shall promptly notify the parent, guardian, or custodian that care or treatment has been provided and shall give the parent, guardian, or custodian frequent status reports on the circumstances of the juvenile. Upon request of a parent, guardian, or custodian of the affected juvenile, the results or records of the aforementioned evaluations, findings, or treatment shall be made available to the parent, guardian, or custodian by the director unless prohibited by G.S. 122C-53(d)." at the end.

Session Laws 2019-33, s. 15(b), effective October 1, 2019, in subdivision (1), added "do any of the following" to the introductory paragraph, added the last sentence of sub-subdivision (1)c., and made stylistic changes. Session Laws 2019-33, s. 15(b), made identical changes in both versions of subdivision (1), but only the version effective December 1, 2019, is set out here.

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, "Casting off the Curse of God n1: Litigation Versus Legislation and the Educational Rights of Youth in North Carolina's Adult Criminal Justice System," see 91 N.C. L. Rev. 36 (2013).

For article, "Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration: Race and Reform: A Missed Opportunity for Meaningful Impact and Potential Remedies," see 51 Wake Forest L. Rev. 545 (2016).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Delegation of Authority - Trial court erred in entering a dispositional order that directed the juvenile to cooperate with placement in a residential treatment facility "if deemed necessary" by either of two counselors as statutory law did not give the trial court authority to delegate its authority in entering a dispositional order. In re Hartsock, 158 N.C. App. 287, 580 S.E.2d 395 (2003).

Because a trial court ordered a juvenile defendant to pay restitution and participate in a residential treatment program, it did not impermissibly delegate authority; instead, defendant was ordered to pay restitution, but the amount was left to be determined until the victim's medical bills were provided to the trial court, which comported with G.S. 7B-2506. In re M.A.B., 170 N.C. App. 192, 611 S.E.2d 886 (2005).

Rule that a trial court may not delegate or vest its discretion in another person or entity applies to a trial court's order of probation pursuant to G.S. 7B-2506(8) and the underlying conditions of that term of probation, which are governed by G.S. 7B-2510; special conditions of probation that respondent juvenile cooperate with any out-of-home placement if deemed necessary by the court counselor and that he cooperate with any counseling or assessment recommended by the court counselor were impermissible delegations of the trial court's authority. In re S.R.S., 180 N.C. App. 151, 636 S.E.2d 277 (2006).

Trial court did not improperly delegate its authority to a third party because it exercised its discretion in implementing probationary conditions; the trial court selected community dispositions within the allowed subdivisions permitted by the Level 1 designation, and it and did not delegate decisions on whether to enforce them to a third party but instead, directed the court counselor and parents to handle the day-to-day implementation of the particular probationary conditions. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696 (2018).

The legislature intended for the court to consider all information relevant to the disposition of a delinquent child. In re Hardy, 39 N.C. App. 610, 251 S.E.2d 643 (1979).

There is no authorization in the statutes to grant legal and physical custody of a juvenile to the Willie M. Services Section of the Division of Mental Health, Developmental Disabilities and Substance Abuse Services, although juvenile's guardian ad litem argued that the Division of Youth Services, also a Division of the Department of Human Resources, is a "person" within the purview of former G.S. 7A-647. In re Autry, 115 N.C. App. 263, 444 S.E.2d 239 (1994), aff'd per curiam, 340 N.C. 95, 455 S.E.2d 155 (1995).

Consecutive commitments are not contrary to the philosophy of the Juvenile Code. Such reasoning would mean that once a juvenile had been committed to a detention facility or training school (now youth development center) he would be free to commit whatever other illegal acts he so chose knowing that he could not receive any additional punishment for his action. This was not the intention of the legislature when it adopted the Juvenile Code. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

The Juvenile Code does not contain any provision which prohibits the commitment of a juvenile to consecutive terms of detention. Absent an express prohibition, the common-law rule that the courts have the authority to commit offenders to consecutive terms of confinement is controlling. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

Confinement Not Authorized. - When a trial court found that a juvenile appellant violated his probation, it was governed by G.S. 7B-2510, and was authorized to order a new disposition at Level 2, the next higher level from the original disposition at Level 1; commitment was not an allowable Level 2 disposition, so the trial court was not authorized to impose commitment, stayed or unstayed. In re T.B., 178 N.C. App. 542, 631 S.E.2d 857 (2006).

Intermittent Confinement Improperly Ordered - Although the trial court had the authority to order that the juvenile be confined on an intermittent basis in an approved detention facility, statutory law required that the timing of the confinement be determined by the trial court in its discretion and the applicable form left space for instruction as to that timing; the trial court erred in not filling in the timing since it left the space blank and, thus, that portion of the disposition order was incomplete and had no effect. In re Hartsock, 158 N.C. App. 287, 580 S.E.2d 395 (2003).

Participation of Parent in Assessment or Treatment. - Former G.S. 7A-650(b1) (see now G.S. 7B-904, 7B-2702 and 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-64k7(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).

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).

The district court is authorized to permit the Division of Youth Services, as the "person" responsible for a juvenile in its custody, to arrange for psychological counseling for sexual offenders. When the agency, as custodian, fails to make such arrangements, the court is authorized by statute to "order the needed treatment." 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).

Power to Order Restitution. - The trial court made appropriate findings of fact based on evidence in the record that the juvenile had or could reasonably acquire the means to pay specified restitution within the 12 month probationary period where the court found as fact that the juvenile was 16 years old at the time of the disposition, and lawfully ordered him to obtain a full time job, thus enabling him to make restitution, and made provisions to adjust the weekly payments required by the order if he returned to school in the fall. In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001).

Restitution Where None of the Co-Defendants Had to Pay. - The trial court erred in requiring that the defendant alone make restitution, and failed to make adequate findings enabling review of that requirement, when the record revealed that at least one other juvenile co-defendant was adjudicated delinquent for breaking and entering and causing injury to local lodge, and that none of the other co-defendants, whether juvenile or adult, were ordered to pay restitution. In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001).

Restitution Order Improper. - Restitution order entered pursuant to G.S. 7B-2506(4) was reversed in a juvenile case because the trial court failed to make findings regarding whether restitution was in the juvenile's best interest and whether restitution was fair to the juvenile; instead, the trial court based its decision on a desire to avoid an injustice to the victim. In re D.A.Q., 214 N.C. App. 535, 715 S.E.2d 509 (2011).

Requirement That People with Whom Juvenile Lives Submit to Warrantless Searches. - The court may not require that those with whom the juvenile associates submit to warrantless searches as a condition of the juvenile's probation; it is unfair and unreasonable to place the success of the juvenile's probation on the acts of others. In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001).

Probationary Conditions Proper. - Probationary conditions in juvenile defendant's manslaughter adjudication that required defendant to visit and put flowers on the victim's grave site, wear a necklace with the victim's picture, and not participate in certain school functions and activities, did not require publicizing defendant's records or present defendant with the choice of staying at home or enduring public ridicule and were not improper; the trial court was cognizant of a psychologist's findings concerning defendant's below average cognitive functioning, but did not afford this evidence as much weight as the other evidence of defendant's actions prior to, during, and after his delinquent act, and the trial court properly considered the evidence before it. In re J.B., 172 N.C. App. 747, 616 S.E.2d 385 (2005), aff'd, 360 N.C. 165, 622 S.E.2d 495 (2005).

Level 3 Classification Proper. - Trial court possessed the discretion to enter a delinquency Level 3 based on an adjudication of assault on a government employee, a class A1 misdemeanor, and the juvenile's "high" prior delinquency history. In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660 (2007).

Intermediate Disposition Appropriate. - Level 2 intermediate disposition was proper in a juvenile case pursuant to G.S. 7B-2508(f) because appellant had 1 point for prior offenses and had a serious offense combined with a low delinquency level; ordered intermediate disposition, that appellant participate in a wilderness program, submit to intermittent confinement of 14 days in an approved detention facility, and perform 50 hours of community service, was within the range of statutorily permissible dispositions, and this decision was not manifestly unsupported by reason and within the discretion of the trial court. In re K.L.D., 210 N.C. App. 747, 709 S.E.2d 409 (2011).

Evidence Did Not Support Transfer of Custody. - Findings of fact in a dispositional order in a delinquency case did not support a trial court's decision to transfer custody of defendant from his mother to his father, and that part of the dispositional order was reversed where the evidence in the record failed to support a finding that placement with the father was in defendant's best interests; the record indicated that defendant had no contact with his father for approximately seven to eight months immediately prior to the assault for which defendant was on trial, the court counselor did not recommend placement with the father and instead advised the court to utilize family services if defendant needed more structure during the day, and it appeared that the trial court based the decision to award custody to the father solely on defendant's school absences. In re Ferrell, 162 N.C. App. 175, 589 S.E.2d 894 (2004).

Transfer of Custody to Department of Social Services Was Proper. - Trial court was authorized to grant custody of respondent, who had been adjudicated delinquent based on a finding that respondent committed involuntary manslaughter, to the Department of Social Services for purposes of obtaining necessary evaluation and treatment pursuant to G.S. 7B-2506(1)(c). Respondent had a history of aggressive behavior directed at younger children and a facility that offered 24-hour monitoring would ensure that respondent did not cause any further harm to other children. In re K.T.L., 177 N.C. App. 365, 629 S.E.2d 152 (2006), review denied, 362 N.C. 472 642 S.E.2d 442 (2007).

Remand Required for New Disposition. - Although the most lenient sentencing alternatives for juveniles was imposed under G.S. 7B-2506 for the nine petitions, it was unclear whether the trial court would have altered the disposition order had the trial court properly adjudicated the juvenile delinquent based solely upon the two petitions in support of which the State submitted sufficient evidence. Even though remand might result in the same disposition based solely upon the two valid adjudications, remand was required for a new disposition. In re R.D.L., 191 N.C. App. 526, 664 S.E.2d 71 (2008).

Power to Reinstate Sentence - Trial court did not err in reinstating a juvenile's sentence after she violated the terms of her probation because the trial court was authorized to activate a juvenile's suspended fourteen-day sentence and impose an additional suspended fourteen-day period of confinement based on the juvenile's admitted probation violation at another hearing, for a total of twenty-eight days confinement, and the trial court's findings of fact were sufficient to support the extension of juvenile's probation; pursuant to G.S. 7B-2510(e) and G.S. 7B-2506 and -2508, a trial court can impose up to and no more than twenty-eight days confinement in an approved juvenile detention facility for a Level 2 disposition. In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449 (2009), rev'd 364 N.C. 214 (2010).

No Credit for Time Served Prior to Disposition - G.S. 15-196.1, which allows for defendants to receive credit for time served in confinement prior to final disposition, is inapplicable to juvenile matters, and a term of juvenile confinement, therefore, may not be reduced by time spent in court-ordered custody before disposition. In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).

Appellate court erred in holding that G.S. 15-196.1 applied to juvenile confinement and that a delinquent juvenile was entitled to credit for time served in secure custody pending the juvenile's dispositional hearings; the General Statutes did not authorize credit for time served before disposition in the juvenile context. In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).

Cited in In re M.E.B., 153 N.C. App. 278, 569 S.E.2d 683 (2002); In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010); In re J.S.W., 211 N.C. App. 620, 711 S.E.2d 471 (2011); In re P.Q.M., 232 N.C. App. 419, 754 S.E.2d 431 (2014).

Opinions of Attorney General

Editor's Note. - The opinions below were rendered prior to the 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-2507. Delinquency history levels.

  1. Generally. - The delinquency history level for a delinquent juvenile is determined by calculating the sum of the points assigned to each of the juvenile's prior adjudications or convictions and to the juvenile's probation status, if any, that the court finds to have been proved in accordance with this section. For the purposes of this section, a prior adjudication is an adjudication of an offense that occurs before the adjudication of the offense before the court.
  2. Points. - Points are assigned as follows:
    1. For each prior adjudication of a Class A through E felony offense, 4 points.
    2. For each prior adjudication of a Class F through I felony offense or Class A1 misdemeanor offense, 2 points.
    3. For each prior conviction of a Class A through E felony offense, 4 points.
    4. For each prior conviction of a Class F through I felony or Class A1 misdemeanor offense, excluding conviction of the motor vehicle laws, 2 points.
    5. For each prior misdemeanor conviction of impaired driving (G.S. 20-138.1), impaired driving in a commercial vehicle (G.S. 20-138.2), and misdemeanor death by vehicle (G.S. 20-141.4(a2)), 2 points.
    6. For each prior adjudication of a Class 1, 2, or 3 misdemeanor offense, 1 point.
    7. For each prior conviction of a Class 1, 2, or 3 misdemeanor offense, excluding conviction for violation of the motor vehicle laws, 1 point.
    8. If the juvenile was on probation at the time of offense, 2 points.
  3. Delinquency History Levels. - The delinquency history levels are:
    1. Low - No more than 1 point.
    2. Medium - At least 2, but not more than 3 points.
    3. High - At least 4 points.
  4. Multiple Prior Adjudications or Convictions Obtained in One Court Session. - For purposes of determining the delinquency history level, if a juvenile is adjudicated delinquent or convicted for more than one offense in a single session of district court or more than one offense in a single superior court during one calendar week, only the adjudication or conviction for the offense with the highest point total is used.
  5. Classification of Prior Adjudications or Convictions From Other Jurisdictions. - Except as otherwise provided in this subsection, an adjudication or conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the juvenile proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the adjudication or conviction is treated as that class of misdemeanor for assigning delinquency history level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the adjudication or conviction is treated as that class of felony for assigning delinquency history level points. If the State proves by the preponderance of the evidence that an offense classified as a misdemeanor in the other jurisdiction is substantially similar to an offense classified as a Class A1 misdemeanor in North Carolina, the adjudication or conviction is treated as a Class A1 misdemeanor for assigning delinquency history level points.
  6. Proof of Prior Adjudications or Convictions. - A prior adjudication or conviction shall be proved by any of the following methods:
    1. Stipulation of the parties.
    2. An original or copy of the court record of the prior adjudication or conviction.
    3. A copy of records maintained by the Department of Public Safety or by the Division.
    4. Any other method found by the court to be reliable.

No points shall be assigned for a prior adjudication that a juvenile is in direct contempt of court or indirect contempt of court.

In determining the delinquency history level, the classification of a prior offense is the classification assigned to that offense at the time the juvenile committed the offense for which disposition is being ordered.

The State bears the burden of proving, by a preponderance of the evidence, that a prior adjudication or conviction exists and that the juvenile before the court is the same person as the juvenile named in the prior adjudication or conviction. The original or a copy of the court records or a copy of the records maintained by the Department of Public Safety or of the Division, bearing the same name as that by which the juvenile is charged, is prima facie evidence that the juvenile named is the same person as the juvenile before the court, and that the facts set out in the record are true. For purposes of this subsection, "a copy" includes a paper writing containing a reproduction of a record maintained electronically on a computer or other data processing equipment, and a document produced by a facsimile machine. The prosecutor shall make all feasible efforts to obtain and present to the court the juvenile's full record. Evidence presented by either party at trial may be utilized to prove prior adjudications or convictions. If asked by the juvenile, the prosecutor shall furnish the juvenile's prior adjudications or convictions to the juvenile within a reasonable time sufficient to allow the juvenile to determine if the record available to the prosecutor is accurate.

History

(1998-202, s. 6; 2000-137, s. 3; 2007-168, s. 5; 2011-145, s. 19.1( l ); 2014-100, s. 17.1(q); 2015-58, s. 2.3; 2017-57, s. 16D.4(h); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2015-58, s. 4, made the last sentence of subsection (a), as added by Session Laws 2015-58, s. 2.3, applicable to offenses committed on or after December 1, 2015.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(h), inserted "or convictions” in the first sentence of subsection (a); added subdivisions (b)(2a), (b)(2b), (b)(2c) and (b)(3a); in subsection (d), inserted "or Convictions” in the subsection catchline, inserted "or convicted”, inserted "or more than one offense in a single superior court during one calendar week,” in subsection (e), inserted "or Convictions” in the subsection catchline, inserted "or conviction” in the first and last sentence, and inserted "adjudication or” in the second and third sentences; and, in subsection (f), inserted "or Convictions” in the subsection catchline, inserted "or conviction” in the introductory paragraph, subdivision (f)(2), and twice in the first sentence of the ending undesignated paragraph, and inserted "or convictions” twice in the ending undesignated paragraph.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in subdivision (f)(3) and in the second sentence of the last paragraph.

Session Laws 2014-100, s. 17.1(q), effective July 1, 2014, substituted "the Department of Public Safety" for "the Division of Criminal Information" in subdivision (f)(3) and in the undesignated paragraph at the end of subsection (f).

Session Laws 2015-58, s. 2.3, effective December 1, 2015, added the last sentence in subsection (a). For applicability, see editor's note.

Session Laws 2017-57, s. 16D.4(h), inserted "or convictions" in the first sentence of subsection (a); added subdivisions (b)(2a), (b)(2b), (b)(2c) and (b)(3a); in subsection (d), inserted "or Convictions" in the subsection catchline, inserted "or convicted", inserted "or more than one offense in a single superior court during one calendar week," in subsection (e), inserted "or Convictions" in the subsection catchline, inserted "or conviction" in the first and last sentence, and inserted "adjudication or" in the second and third sentences; and, in subsection (f), inserted "or Convictions" in the subsection catchline, inserted "or conviction" in the introductory paragraph, subdivision (f)(2), and twice in the first sentence of the ending undesignated paragraph, and inserted "or convictions" twice in the ending undesignated paragraph. For effective date and applicability, see editor's note.

CASE NOTES

Prior Adjudication. - Trial court properly considered a juvenile's larceny of a firearm offense as a prior adjudication pursuant to G.S. 7B-2507(a) where the adjudication of that offense occurred prior to the 4 March 2013 disposition hearing and entry of the disposition on his offenses. In re P.Q.M., 232 N.C. App. 419, 754 S.E.2d 431 (2014).

Stipulation to Prior Adjudications in Report. - Trial court properly determined a juvenile's delinquency history points, pursuant to G.S. 7B-2507(f), because the juvenile stipulated to the court counselor's report, which listed the juvenile's prior adjudications, as the juvenile's attorney received and reviewed the report and failed to object to it. Additionally, the juvenile did not assert in the juvenile's appellate brief that any of the prior adjudications listed in the report did not, in fact, exist. In re DRH, 194 N.C. App. 166, 668 S.E.2d 919 (2008).

Intermediate Disposition Appropriate. - Level 2 intermediate disposition was proper in a juvenile case pursuant to G.S. 7B-2508(f) because appellant had 1 point for prior offenses and had a serious offense combined with a low delinquency level; ordered intermediate disposition, that appellant participate in a wilderness program, submit to intermittent confinement of 14 days in an approved detention facility, and perform 50 hours of community service, was within the range of statutorily permissible dispositions, and this decision was not manifestly unsupported by reason and within the discretion of the trial court. In re K.L.D., 210 N.C. App. 747, 709 S.E.2d 409 (2011).

Level 3 Disposition Proper. - Where juvenile defendant was adjudicated delinquent for having committed assault with a deadly weapon inflicting serious injury, and defendant's delinquency history level was determined to have been low, the trial court had the authority to impose either a level 2 or level 3 disposition, and it was within the trial court's discretion to determine which dispostional alternative to impose; where defendant failed to return to school at the end of her five-day suspension, was absent from school for more than 100 days, and where the record revealed that the trial court had before it undisputed evidence that both defendant and her mother knew that defendant was eligible to return to school after the five-day suspension, but were unable to offer an explanation for defendant's failure to return to school, defendant failed to show that the trial court's decision to impose a level 3 disposition amounted to an abuse of discretion. In re N.B., 167 N.C. App. 305, 605 S.E.2d 488 (2004).

Assault on a government employee was a class A1 misdemeanor; a trial court possessed the discretion to enter a delinquency Level 3 based on a juvenile adjudication of assault on a government employee, and the juvenile's "high" prior delinquency history. In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660 (2007).

Level 3 Disposition Improper. - It was error to deny a juvenile's motion to modify the juvenile's disposition because the court wrongly assigned two delinquency history points for being on probation at the time of an offense when the juvenile was not on probation, so the court had no authority to impose a level 3 disposition. In re A.F., 231 N.C. App. 348, 752 S.E.2d 245 (2013).

Cited in In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001); In re M.E.B., 153 N.C. App. 278, 569 S.E.2d 683 (2002); In re K.T.L., 177 N.C. App. 365, 629 S.E.2d 152 (2006), review denied, 362 N.C. 472 642 S.E.2d 442 (2007); In re A.J. M.-B., 212 N.C. App. 586, 713 S.E.2d 104 (2011).


§ 7B-2508. Dispositional limits for each class of offense and delinquency history level.

  1. Offense Classification. - The offense classifications are as follows:
    1. Violent -. Adjudication of a Class A through E felony offense;
    2. Serious -. Adjudication of a Class F through I felony offense or a Class A1 misdemeanor;
    3. Minor -. Adjudication of a Class 1, 2, or 3 misdemeanor or adjudication of indirect contempt by a juvenile.
  2. Delinquency History Levels. - A delinquency history level shall be determined for each delinquent juvenile as provided in G.S. 7B-2507.
  3. Level 1 - Community Disposition. - A court exercising jurisdiction over a juvenile who has been adjudicated delinquent and for whom the dispositional chart in subsection (f) of this section prescribes a Level 1 disposition may provide for evaluation and treatment under G.S. 7B-2502 and for any of the dispositional alternatives contained in subdivisions (1) through (13) and (16) of G.S. 7B-2506. In determining which dispositional alternative is appropriate, the court shall consider the needs of the juvenile as indicated by the risk and needs assessment contained in the predisposition report, the appropriate community resources available to meet those needs, and the protection of the public.
  4. Level 2 - Intermediate Disposition. - A court exercising jurisdiction over a juvenile who has been adjudicated delinquent and for whom the dispositional chart in subsection (f) of this section prescribes a Level 2 disposition may provide for evaluation and treatment under G.S. 7B-2502 and for any of the dispositional alternatives contained in subdivisions (1) through (23) of G.S. 7B-2506, but shall provide for at least one of the intermediate dispositions authorized in subdivisions (13) through (23) of G.S. 7B-2506. However, notwithstanding any other provision of this section, a court may impose a Level 3 disposition if the juvenile has previously received a Level 3 disposition in a prior juvenile action. In determining which dispositional alternative is appropriate, the court shall consider the needs of the juvenile as indicated by the risk and needs assessment contained in the predisposition report, the appropriate community resources available to meet those needs, and the protection of the public.
  5. Level 3 - Commitment. - A court exercising jurisdiction over a juvenile who has been adjudicated delinquent and for whom the dispositional chart in subsection (f) of this section prescribes a Level 3 disposition shall commit the juvenile to the Division for placement in a youth development center in accordance with G.S. 7B-2506(24). However, a court may impose a Level 2 disposition rather than a Level 3 disposition if the court submits written findings on the record that substantiate extraordinary needs on the part of the offending juvenile.
  6. Dispositions for Each Class of Offense and Delinquency History Level; Disposition Chart Described. - The authorized disposition for each class of offense and delinquency history level is as specified in the chart below. Delinquency history levels are indicated horizontally on the top of the chart. Classes of offense are indicated vertically on the left side of the chart. Each cell on the chart indicates which of the dispositional levels described in subsections (c) through (e) of this section are prescribed for that combination of offense classification and delinquency history level:
  7. Notwithstanding subsection (f) of this section, a juvenile who has been adjudicated for a minor offense may be committed to a Level 3 disposition if the juvenile has been adjudicated of four or more prior offenses. For purposes of determining the number of prior offenses under this subsection, each successive offense is one that was committed after adjudication of the preceding offense.
  8. Notwithstanding subsection (f) of this section, if a juvenile is adjudicated for an offense that the court finds beyond a reasonable doubt was committed as part of criminal gang activity as defined in G.S. 7B-2508.1, the juvenile shall receive a disposition one level higher than would otherwise be provided for the class of offense and delinquency history level.
  9. If a juvenile is adjudicated of more than one offense during a session of juvenile court, the court shall consolidate the offenses for disposition and impose a single disposition for the consolidated offenses. The disposition shall be specified for the class of offense and delinquency history level of the most serious offense.

DELINQUENCY HISTORY

OFFENSE LOW MEDIUM HIGH VIOLENT Level 2 or 3 Level 3 Level 3 SERIOUS Level 1 or 2 Level 2 Level 2 or 3 MINOR Level 1 Level 1 or 2 Level 2.

History

(1998-202, s. 6; 2000-137, s. 3; 2001-95, s. 5; 2001-179, s. 1; 2007-168, s. 6; 2011-145, s. 19.1( l ); 2017-57, s. 16D.4(gg); 2017-197, s. 5.4; 2018-142, s. 23(b); 2019-186, s. 10.)

Editor's Note. - Session Laws 2000-67, s. 19.7, transfers the Guard Response Alternative Sentencing Program and all its functions, powers, duties, and obligations from the Department of Crime Control and Public Safety for the Guard Response Alternative Sentencing Program to the Office of Juvenile Justice (now the Department of Juvenile Justice and Delinquency Prevention.) The Program is to continue to function as an additional probation option for certain first-time juveniles who have been adjudicated delinquent and who are subject to Level 2 disposition.

Session Laws 2000-67, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2000.' "

Session Laws 2000-67, s. 28.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2000-2001 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2000-2001 fiscal year."

Session Laws 2000-67, s. 28.4, contains a severability clause.

Session Laws 2017-57, s. 16D.4(jj), as amended by Session Laws 2017-197, s. 5.4 made the amendment to this section by Acts 2017-57, s. 16D.4(ee), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(gg), added subsection (g1).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2019-186, s. 12, made the amendment of subsection (g1) by Session Laws 2019-186, s. 10, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in subsection (e).

Session Laws 2017-57, s. 16D.4(gg), added subsection (g1). For effective date and applicability, see editor's note.

Session Laws 2019-186, s. 10, inserted "beyond a reasonable doubt" in subsection (g1). For effective date and applicability, see editor's note.

Legal Periodicals. - For article, "Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration: Race and Reform: A Missed Opportunity for Meaningful Impact and Potential Remedies," see 51 Wake Forest L. Rev. 545 (2016).

CASE NOTES

Delegation of Authority. - Trial court did not improperly delegate its authority to a third party because it exercised its discretion in implementing probationary conditions; the trial court selected community dispositions within the allowed subdivisions permitted by the Level 1 designation, and it and did not delegate decisions on whether to enforce them to a third party but instead, directed the court counselor and parents to handle the day-to-day implementation of the particular probationary conditions. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696 (2018).

Level 3 Disposition. - The trial court committed no error in using a juvenile's previous commitment to training school (now youth development center) as a basis for imposing a Level 3 disposition and again committing her to training school (now youth development center). In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001).

Where juvenile defendant was adjudicated delinquent for having committed assault with a deadly weapon inflicting serious injury, and defendant's delinquency history level was determined to have been been low, the trial court had the authority to impose either a level 2 or level 3 disposition, and it was within the trial court's discretion to determine which dispostional alternative to impose; where defendant failed to return to school at the end of her five-day suspension, was absent from school for more than 100 days, and where the record revealed that the trial court had before it undisputed evidence that both defendant and her mother knew that defendant was eligible to return to school after the five-day suspension, but were unable to offer an explanation for defendant's failure to return to school, defendant failed to show that the trial court's decision to impose a level 3 disposition amounted to an abuse of discretion. In re N.B., 167 N.C. App. 305, 605 S.E.2d 488 (2004).

When appellant, a juvenile, had a violent offense, first-degree sexual assault, and a low delinquency history, the court did not err in ordering him to a youth development center; the decision was a reasoned one, given evidence that appellant had a strong sexual interest in younger children, that he might reoffend, and that rape might sexually excite him, and an evaluation which stated that appellant might be more suitable for treatment in a secure environment and that he should not have unsupervised contact with children aged 11 or under. In re D.A.F., 179 N.C. App. 832, 635 S.E.2d 509 (2006).

Assault on a government employee was a class A1 misdemeanor; a trial court possessed the discretion to enter a delinquency Level 3 based on a juvenile adjudication of assault on a government employee, and the juvenile's "high" prior delinquency history. In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660 (2007).

Juvenile failed to show that the trial court abused its discretion in imposing a level 3 disposition where the evidence showed that he had a medium risk and medium needs, he could not receive the level of structure he needed at home, and nothing in the record indicated that the court's failure to find that the juvenile had extraordinary needs was so arbitrary that it could not have been the result of a reasoned decision. In re P.Q.M., 232 N.C. App. 419, 754 S.E.2d 431 (2014).

Juvenile's level 3 disposition was not an abuse of discretion because the juvenile continued to violate probation after being given another chance to continue on a level 2 disposition. In re D.E.P., 251 N.C. App. 752, 796 S.E.2d 509 (2017).

Level 3 Disposition Improper. - Order entering a level 3 disposition and commitment order based on a juvenile's violation of probation was error because it was undisputed that underlying offense was classified as a minor offense under G.S. 7B-2508, and the plain language of G.S. 7B-2510(f) specifically prohibited the entry of a new disposition at level 3; G.S. 7B-2508(g) did not require a different result. In re S.B., 207 N.C. App. 741, 701 S.E.2d 359 (2010).

It was error to deny a juvenile's motion to modify the juvenile's disposition because the court wrongly assigned two delinquency history points for being on probation at the time of an offense when the juvenile was not on probation, so the court had no authority to impose a level 3 disposition. In re A.F., 231 N.C. App. 348, 752 S.E.2d 245 (2013).

Intermediate Disposition Appropriate. - Level 2 intermediate disposition was proper in a juvenile case pursuant to G.S. 7B-2508(f) because appellant had 1 point for prior offenses and had a serious offense combined with a low delinquency level; ordered intermediate disposition, that appellant participate in a wilderness program, submit to intermittent confinement of 14 days in an approved detention facility, and perform 50 hours of community service, was within the range of statutorily permissible dispositions, and this decision was not manifestly unsupported by reason and within the discretion of the trial court. In re K.L.D., 210 N.C. App. 747, 709 S.E.2d 409 (2011).

Consolidation of Adjudications. - Pursuant to G.S. 7B-2508(h), a trial court was required to consolidate a juvenile's adjudications for robbery with a dangerous weapon and felony conspiracy into a single disposition for robbery with a dangerous weapon, the juvenile's most serious offense. Accordingly, the trial court's disposition and commitment orders were vacated, and the case was remanded for the entry of a single disposition order. In re DRH, 194 N.C. App. 166, 668 S.E.2d 919 (2008).

Consolidation requirement of G.S. 7B-2508(h) did not apply to a juvenile's disposition level where the juvenile was adjudicated delinquent on three different days in three different calendar weeks in three different sessions, the trial court had merely transferred the juvenile's robbery with a dangerous weapon from one county to another county, and that transfer order did not require consolidation. In re P.Q.M., 232 N.C. App. 419, 754 S.E.2d 431 (2014).

Sentencing for First Degree Sex Offenses With a Child. - Juvenile defendant failed to argue how the absence of a sex offender specific evaluation hindered the trial court's ability to properly sentence him on his adjudication for first degree sex offenses with a child, which was a violent felony. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757 (2008).

Confinement Not Authorized. - When a trial court found that a juvenile appellant violated his probation, it was governed by G.S. 7B-2510, and was authorized to order a new disposition at Level 2, the next higher level from the original disposition at Level 1; commitment was not an allowable Level 2 disposition, so the trial court was not authorized to impose commitment, stayed or unstayed. In re T.B., 178 N.C. App. 542, 631 S.E.2d 857 (2006).

Power to Reinstate Sentence - Trial court did not err in reinstating a juvenile's sentence after she violated the terms of her probation because the trial court was authorized to activate a juvenile's suspended fourteen-day sentence and impose an additional suspended fourteen-day period of confinement based on the juvenile's admitted probation violation at another hearing, for a total of twenty-eight days confinement, and the trial court's findings of fact were sufficient to support the extension of juvenile's probation; pursuant to G.S. 7B-2510(e) and G.S. 7B-2506 and -2508, a trial court can impose up to and no more than twenty-eight days confinement in an approved juvenile detention facility for a Level 2 disposition. In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449 (2009), rev'd 364 N.C. 214 (2010).

No Credit for Time Served Prior to Disposition - G.S. 15-196.1, which allows for defendants to receive credit for time served in confinement prior to final disposition, is inapplicable to juvenile matters, and a term of juvenile confinement, therefore, may not be reduced by time spent in court-ordered custody before disposition. In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).

Appellate court erred in holding that G.S. 15-196.1 applied to juvenile confinement and that a delinquent juvenile was entitled to credit for time served in secure custody pending the juvenile's dispositional hearings; the General Statutes did not authorize credit for time served before disposition in the juvenile context. In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).

Cited in In re M.E.B., 153 N.C. App. 278, 569 S.E.2d 683 (2002); In re K.T.L., 177 N.C. App. 365, 629 S.E.2d 152 (2006), review denied, 362 N.C. 472 642 S.E.2d 442 (2007); In re R.D.L., 191 N.C. App. 526, 664 S.E.2d 71 (2008); In re A.W., 209 N.C. App. 596, 706 S.E.2d 305 (2011); In re V.M., 211 N.C. App. 389, 712 S.E.2d 213 (2011); In re N.T., 214 N.C. App. 136, 715 S.E.2d 183 (2011); In re D.S.B., 239 N.C. App. 482, 768 S.E.2d 922 (2015); In re R.D., 243 N.C. App. 61, 776 S.E.2d 685 (2015).


§ 7B-2508.1. Criminal gang activity.

The following definitions apply in this Article:

  1. Criminal gang. - Any ongoing organization, association, or group of three or more persons, whether formal or informal, that (i) has as one of its primary activities the commission of criminal or delinquent acts and (ii) shares a common name, identification, signs, symbols, tattoos, graffiti, attire, or other distinguishing characteristics, including common activities, customs, or behaviors. The term shall not include three or more persons associated in fact, whether formal or informal, who are not engaged in criminal gang activity.
  2. Criminal gang activity. - The commission of, attempted commission of, or solicitation, coercion, or intimidation of another person to commit (i) any offense under Article 5 of Chapter 90 of the General Statutes or (ii) any offense under Chapter 14 of the General Statutes except Article 9, 22A, 40, 46, or 59 thereof, and further excepting G.S. 14-82, 14-145, 14-183, 14-184, 14-186, 14-190.9, 14-247, 14-248, or 14-313 thereof, and either of the following conditions is met:
    1. The offense is committed with the intent to benefit, promote, or further the interests of a criminal gang or for the purposes of increasing a person's own standing or position within a criminal gang.
    2. The participants in the offense are identified as criminal gang members acting individually or collectively to further any criminal purpose of a criminal gang.
  3. Criminal gang member. - Any person who meets three or more of the following criteria:
    1. The person admits to being a member of a criminal gang.
    2. The person is identified as a criminal gang member by a reliable source, including a parent or a guardian.
    3. The person has been previously involved in criminal gang activity.
    4. The person has adopted symbols, hand signs, or graffiti associated with a criminal gang.
    5. The person has adopted the display of colors or the style of dress associated with a criminal gang.
    6. The person is in possession of or linked to a criminal gang by physical evidence, including photographs, ledgers, rosters, written or electronic communications, or membership documents.
    7. The person has tattoos or markings associated with a criminal gang.
    8. The person has adopted language or terminology associated with a criminal gang.
    9. The person appears in any form of social media to promote a criminal gang.

History

(2017-57, s. 16D.4(hh); 2017-197, s. 5.4; 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(jj), as amended by Session Laws 2017-197, s. 5.4, made this section effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

§ 7B-2509. Registration of certain delinquent juveniles.

In any case in which a juvenile, who was at least 11 years of age at the time of the offense, is adjudicated delinquent for committing a violation of G.S. 14-27.6 (attempted rape or sexual offense), G.S. 14-27.21 (first-degree forcible rape), G.S. 14-27.22 (second-degree forcible rape), G.S. 14-27.24 (first-degree statutory rape), G.S. 14-27.26 (first-degree forcible sexual offense), G.S. 14-27.27 (second-degree forcible sexual offense), or G.S. 14-27.29 (first-degree statutory sexual offense), the judge, upon a finding that the juvenile is a danger to the community, may order that the juvenile register in accordance with Part 4 of Article 27A of Chapter 14 of the General Statutes.

History

(1997-516, s. 1A; 1998-202, s. 11; 2015-181, s. 26.)

Editor's Note. - This section was originally enacted by Session Laws 1997-516, s. 1A, as G.S. 7A-647(4) and by Session Laws 1998-202, s. 11, as G.S. 7B-2508.1 and was recodified as this section at the direction of the Revisor of Statutes.

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. 26, had rewritten the section.

Effect of Amendments. - Session Laws 2015-181, s. 26, effective December 1, 2015, and applicable to offenses committed on or after that date, rewrote section.

§ 7B-2510. Conditions of probation; violation of probation.

  1. In any case where a juvenile is placed on probation pursuant to G.S. 7B-2506(8), the juvenile court counselor shall have the authority to visit the juvenile where the juvenile resides. The court may impose conditions of probation that are related to the needs of the juvenile and that are reasonably necessary to ensure that the juvenile will lead a law-abiding life, including:
    1. That the juvenile shall remain on good behavior.
    2. That the juvenile shall not violate any laws.
    3. That the juvenile shall not violate any reasonable and lawful rules of a parent, guardian, or custodian.
    4. That the juvenile attend school regularly.
    5. That the juvenile maintain passing grades in up to four courses during each grading period and meet with the juvenile court counselor and a representative of the school to make a plan for how to maintain those passing grades.
    6. That the juvenile not associate with specified persons or be in specified places.
    7. That the juvenile:
      1. Refrain from use or possession of any controlled substance included in any schedule of Article 5 of Chapter 90 of the General Statutes, the Controlled Substances Act;
      2. Refrain from use or possession of any alcoholic beverage regulated under Chapter 18B of the General Statutes; and
      3. Submit to random drug testing.
    8. That the juvenile abide by a prescribed curfew.
    9. That the juvenile submit to a warrantless search at reasonable times.
    10. That the juvenile possess no firearm, explosive device, or other deadly weapon.
    11. That the juvenile report to a juvenile court counselor as often as required by the juvenile court counselor.
    12. That the juvenile make specified financial restitution or pay a fine in accordance with G.S. 7B-2506(4), (5), and (22).
    13. That the juvenile be employed regularly if not attending school.
    14. That the juvenile satisfy any other conditions determined appropriate by the court.
  2. In addition to the regular conditions of probation specified in subsection (a) of this section, the court may, at a dispositional hearing or any subsequent hearing, order the juvenile to comply, if directed to comply by the chief court counselor, with one or more of the following conditions:
    1. Perform up to 20 hours of community service;
    2. Submit to substance abuse monitoring and treatment;
    3. Participate in a life skills or an educational skills program administered by the Division;
    4. Cooperate with electronic monitoring; and
    5. Cooperate with intensive supervision.
  3. An order of probation shall remain in force for a period not to exceed one year from the date entered. Prior to expiration of an order of probation, the court may extend it for an additional period of one year after notice and a hearing, if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the juvenile. At the discretion of the court, the hearing to determine to extend probation may occur after the expiration of an order of probation at the next regularly scheduled court date or if the juvenile fails to appear in court.
  4. On motion of the juvenile court counselor or the juvenile, or on the court's own motion, the court may review the progress of any juvenile on probation at any time during the period of probation or at the end of probation. The conditions or duration of probation may be modified only as provided in this Subchapter and only after notice and a hearing.
  5. If the court, after notice and a hearing, finds by the greater weight of the evidence that the juvenile has violated the conditions of probation set by the court, the court may continue the original conditions of probation, modify the conditions of probation, or, except as provided in subsection (f) of this section, order a new disposition. In the court's discretion, the court may order a new disposition at the next higher level on the disposition chart or order a term of confinement in a secure juvenile detention facility for up to twice the term authorized by G.S. 7B-2508, in addition to any other Level 2 dispositional option.
  6. A court shall not order a Level 3 disposition for violation of the conditions of probation by a juvenile adjudicated delinquent for an offense classified as minor under G.S. 7B-2508.

However, the court shall not give the chief court counselor discretion to impose the conditions of either subsection (4) or (5) of this section unless the juvenile is subject to Level 2 dispositions pursuant to G.S. 7B-2508 or subsection (d) of this section.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 20; 1991, c. 353, s. 1; 1991 (Reg. Sess., 1992), c. 1030, s. 4; 1993, c. 369, s. 1; c. 462, s. 1; 1998-202, s. 6; 2000-137, s. 3; 2001-490, ss. 2.23, 2.24; 2011-145, s. 19.1( l ); 2015-58, s. 2.4.)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2509 and was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2015-58, s. 4, made the amendment to this section by Session Laws 2015-58, s. 2.4, applicable to offenses committed on or after December 1, 2015.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in subdivision (b)(3).

Session Laws 2015-58, s. 2.4, effective December 1, 2015, in subsection (c), substituted "one year after notice and a hearing" for "one year after a hearing" in the second sentence, and added the last sentence; and in subsection (e), deleted "at the next higher level on the disposition chart in G.S. 7B-2508" at the end of the first sentence, and substituted "the court may order a new disposition at the next higher level on the disposition chart or" for "part of the new disposition may include an" and added "in addition to any other Level 2 dispositional option" in the second sentence. For applicability, see editor's note.

Legal Periodicals. - For article, "Implementing De-Incarceration Strategies: Policies and Practices to Reduce Crime and Mass Incarceration: Race and Reform: A Missed Opportunity for Meaningful Impact and Potential Remedies," see 51 Wake Forest L. Rev. 545 (2016).

CASE NOTES

Violation of Conditions of Probation. - Where respondent juvenile was initially placed on probation as an "undisciplined" child for unlawful absence from school, and his probation was continued when he was adjudicated a delinquent for damage to property by shooting out the windows and screens of a home with an air rifle and again when he was adjudicated a delinquent for stealing $60.00 from a purse, his probationary status resulted from delinquent behavior rather than merely from the undisciplined behavior upon which it was initially grounded, and the juvenile court had authority to commit respondent to the custody of the Division of Youth Services for placement in one of its residential facilities upon finding respondent in violation of the conditions of his probation subsequent to the adjudications that he was delinquent. In re Hughes, 50 N.C. App. 258, 273 S.E.2d 324 (1981), (decided prior to the enactment of this Chapter).

When a juvenile admitted a violation of his probation due to being physically aggressive with another juvenile, the double jeopardy clause did not preclude his subsequent delinquency adjudication based on that behavior, as double jeopardy did not apply to his probation revocation hearing; any punishment to which he was exposed by virtue of that hearing was punishment for the offense for which he was originally placed on probation, rather than punishment for the offense on which his probation violation was based, so he was not being punished twice for the same offense. In re O'Neal, 160 N.C. App. 409, 585 S.E.2d 478 (2003), cert. denied, 357 N.C. 657, 590 S.E.2d 270 (2003).

When a trial court found that a juvenile appellant violated his probation, it was governed by G.S. 7B-2510, and was authorized to order a new disposition at Level 2, the next higher level from the original disposition at Level 1; commitment was not an allowable Level 2 disposition, so the trial court was not authorized to impose commitment, stayed or unstayed. In re T.B., 178 N.C. App. 542, 631 S.E.2d 857 (2006).

Where a juvenile's court supervision was revoked for probation violations, it was not error to fail to make the specific inquiries enumerated in G.S. 7B-2407, because G.S. 7B-2407 did not apply to the juvenile's admission, or admissions by the juvenile through the juvenile's attorney, that the juvenile violated conditions of court supervision. In re D.J.M., 181 N.C. App. 126, 638 S.E.2d 610 (2007).

Trial court did not err in reinstating a juvenile's sentence after she violated the terms of her probation because the trial court was authorized to activate a juvenile's suspended fourteen-day sentence and impose an additional suspended fourteen-day period of confinement based on the juvenile's admitted probation violation at another hearing, for a total of twenty-eight days confinement, and the trial court's findings of fact were sufficient to support the extension of juvenile's probation; pursuant to G.S. 7B-2510(e) and G.S. 7B-2506 and -2508, a trial court can impose up to and no more than twenty-eight days confinement in an approved juvenile detention facility for a Level 2 disposition. In re D.L.H., 198 N.C. App. 286, 679 S.E.2d 449 (2009), rev'd 364 N.C. 214 (2010).

Trial court did not err in finding that the juvenile had willfully violated the terms and conditions of his probation because, since he had been placed on probation, defendant had had numerous unexcused absences from school and had violated school rules by communicating threats to a teacher; and, even if the trial court erred in finding that the juvenile had the ability to control his behavior and did not willfully violate the school rules when he communicated threats to a teacher, that fact had no bearing on the extent to which he was willfully absent from school without a valid excuse on numerous occasions in violation of his probation. In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014).

Juvenile's level 3 disposition was not an abuse of discretion because the juvenile continued to violate probation after being given another chance to continue on a level 2 disposition. In re D.E.P., 251 N.C. App. 752, 796 S.E.2d 509 (2017).

No Credit for Time Served Prior to Disposition - G.S. 15-196.1, which allows for defendants to receive credit for time served in confinement prior to final disposition, is inapplicable to juvenile matters, and a term of juvenile confinement, therefore, may not be reduced by time spent in court-ordered custody before disposition. In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).

Appellate court erred in holding that G.S. 15-196.1 applied to juvenile confinement and that a delinquent juvenile was entitled to credit for time served in secure custody pending the juvenile's dispositional hearings; the General Statutes did not authorize credit for time served before disposition in the juvenile context. In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010).

Probationary Conditions Proper. - Probationary conditions in juvenile defendant's manslaughter adjudication that required defendant to visit and put flowers on the victim's grave site, wear a necklace with the victim's picture, and not participate in certain school functions and activities, did not require publicizing defendant's records or present defendant with the choice of staying at home or enduring public ridicule and were not improper; the trial court was cognizant of a psychologist's findings concerning defendant's below average cognitive functioning, but did not afford this evidence as much weight as the other evidence of defendant's actions prior to, during, and after his delinquent act, and the trial court properly considered the evidence before it. In re J.B., 172 N.C. App. 747, 616 S.E.2d 385 (2005), aff'd, 360 N.C. 165, 622 S.E.2d 495 (2005).

Extension of Probation After Expiration of Probationary Period - Juvenile court's decision to extend juvenile's probation after the expiration of his original term of probation, made upon a finding that the juvenile had violated probation, was within the limited discretion of the trial court to modify probation within a reasonable time after its expiration, as conferred by G.S. 7B-2510. In re T.J., 146 N.C. App. 605, 553 S.E.2d 418 (2001).

Level 3 Disposition Improper. - Order entering a level 3 disposition and commitment order based on a juvenile's violation of probation was error because it was undisputed that underlying offense was classified as a minor offense under G.S. 7B-2508, and the plain language of G.S. 7B-2510(f) specifically prohibited the entry of a new disposition at level 3; G.S. 7B-2508(g) did not require a different result. In re S.B., 207 N.C. App. 741, 701 S.E.2d 359 (2010).

When, at disposition, a juvenile was assigned two delinquency history points for being on probation at the time of an offense, but the juvenile was not on probation at the relevant time, the juvenile's acknowledgment that the juvenile's delinquency history could subject the juvenile to a level 3 disposition and concession of the existence of the challenged delinquency history points before entry of the contested disposition did not expressly extend the juvenile's probation because this procedure did not satisfy G.S. 7B-2510, as no hearing was held on extending probation. In re A.F., 231 N.C. App. 348, 752 S.E.2d 245 (2013).

Motion for review accurately stated the expiration date of defendant juvenile's probation, and the violations listed in the facts and circumstances section all occurred after defendant was placed on probation, such that the motion for review provided adequate notice that he was alleged to have violated the conditions of the only term of probation to which he was then subject; assuming the motion for review failed to provide defendant with notice that he could receive a Level III disposition for violation of probation conditions, the record established that he had actual notice of his legal status and the trial court did not err in imposing a Level III disposition. In re D.S.B., 239 N.C. App. 482, 768 S.E.2d 922 (2015).

Trial Court's Authority. - When the motion for review was filed, the only probationary term to which defendant juvenile was subject was the Level II disposition imposed in 2013 for larceny, and a violation of the earlier probation, which had expired, would not have provided the trial court with authority to enter a new disposition. In re D.S.B., 239 N.C. App. 482, 768 S.E.2d 922 (2015).

Trial court erred in committing a juvenile to a youth development center for a minimum of six months up to his 18th birthday because it lacked subject matter jurisdiction to enter a second dispositional order on the juvenile's probation violations when it had already entered a disposition order continuing him on probation and there were no motions for review filed, notice, or hearings conducted after the first disposition order. In re R.S.M, 257 N.C. App. 21, 809 S.E.2d 134 (2017).

Delegation of Authority. - Rule that a trial court may not delegate or vest its discretion in another person or entity applies to a trial court's order of probation pursuant to G.S. 7B-2506(8) and the underlying conditions of that term of probation, which are governed by G.S. 7B-2510; special conditions of probation that respondent juvenile cooperate with any out-of-home placement if deemed necessary by the court counselor and that he cooperate with any counseling or assessment recommended by the court counselor were impermissible delegations of the trial court's authority. In re S.R.S., 180 N.C. App. 151, 636 S.E.2d 277 (2006).

Where a trial court ordered defendant juvenile to continue on probation with the new condition that defendant cooperate with an out of home placement and be placed in detention until the placement was available, the court did not violate G.S. 7B-2510(e) as it did not leave the determination of whether the out of home placement was necessary to another; while it might have left the specific details of the out of home placement with an organization, it did not delegate its authority as to which dispositional alternatives were imposed in the new juvenile order. In re V.A.L., 187 N.C. App. 302, 652 S.E.2d 726 (2007).

Use of Hearsay Evidence. - Trial court did not err in finding that the juvenile had violated the terms and conditions of his probation based solely on hearsay evidence. In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014).

Findings of Fact. - Trial court erred in extending a juvenile's probation for an additional six months because, while the trial court had discretion to extend the juvenile's probation and there was information before the trial court that could support findings of fact as statutorily required, the trial court did not make any findings in the order. In re H.D.H., - N.C. App. - , 839 S.E.2d 65 (2020).

Applied in In re Jones, (N.C. App. Aug. 7, 2001).

Cited in In re M.E.B., 153 N.C. App. 278, 569 S.E.2d 683 (2002); State v. Hinton, 361 N.C. 207, 639 S.E.2d 437 (2007); In re V.M., 211 N.C. App. 389, 712 S.E.2d 213 (2011).


§ 7B-2511. Termination of probation.

At the end of or at any time during probation, the court may terminate probation by written order upon finding that there is no further need for supervision. The finding and order terminating probation may be entered in chambers in the absence of the juvenile and may be based on a report from the juvenile court counselor or, at the election of the court, the order may be entered with the juvenile present after notice and a hearing.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2001-490, s. 2.25.)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2510 and was recodified as this section at the direction of the Revisor of Statutes.

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Violation of Conditions of Probation. - Where respondent juvenile was initially placed on probation as an "undisciplined" child for unlawful absence from school, and his probation was continued when he was adjudicated a delinquent for damage to property by shooting out the windows and screens of a home with an air rifle and again when he was adjudicated a delinquent for stealing $60.00 from a purse, his probationary status resulted from delinquent behavior rather than merely from the undisciplined behavior upon which it was initially grounded, and the juvenile court had authority to commit respondent to the custody of the Division of Youth Services for placement in one of its residential facilities upon finding respondent in violation of the conditions of his probation subsequent to the adjudications that he was delinquent. In re Hughes, 50 N.C. App. 258, 273 S.E.2d 324 (1981).


§ 7B-2512. Dispositional order.

  1. The dispositional order shall be in writing 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.
  2. The court shall include information at the time of issuing the dispositional order, either orally in court or in writing, on the expunction of juvenile records as provided for in G.S. 7B-3200 that are applicable to the dispositional order.

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. 7; 2015-58, s. 2.5.)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2511 and was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2015-58, s. 4, made subsection (b), as added by Session Laws 2015-58, s. 2.5, applicable to offenses committed on or after December 1, 2015.

Effect of Amendments. - Session Laws 2015-58, s. 2.5, effective December 1, 2015, designated the existing language as subsection (a) and added subsection (b). 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.

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).

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).

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).

In a juvenile delinquency proceeding, a trial court's oral findings as to whether the State had proved the allegations against a juvenile sufficed; however, the written order had to be corrected so that the record reflected the finding. In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

Commitment Order Not Authorized. - When a trial court found that a juvenile appellant violated his probation, it was governed by G.S. 7B-2510, and was authorized to order a new disposition at Level 2, the next higher level from the original disposition at Level 1; commitment was not an allowable Level 2 disposition, so the trial court was not authorized to impose commitment, stayed or unstayed. In re T.B., 178 N.C. App. 542, 631 S.E.2d 857 (2006).

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).

The written order terminating respondent's parental rights which contained language not included in the trial court's recital in open court did not violate former G.S. 7A-651 where the findings about which respondent complained related to the "adjudication" by the trial court, pursuant to the provisions of former G.S. 7A-289.32, that grounds for termination of respondent's parental rights existed at the time of the hearing, not to the court's "disposition" pursuant to former G.S. 7A-289.31 and where the order entered by the trial court was in "general conformity" to the disposition announced in open court. In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).

Evidence Did Not Support Transfer of Custody. - Findings of fact in a dispositional order in a delinquency case did not support a trial court's decision to transfer custody of defendant from his mother to his father, and that part of the dispositional order was reversed where the evidence in the record failed to support a finding that placement with the father was in defendant's best interests; the record indicated that defendant had no contact with his father for approximately seven to eight months immediately prior to the assault for which defendant was on trial, the court counselor did not recommend placement with the father and instead advised the court to utilize family services if defendant needed more structure during the day, and it appeared that the trial court based the decision to award custody to the father solely on defendant's school absences. In re Ferrell, 162 N.C. App. 175, 589 S.E.2d 894 (2004).

Evidence in Support of Commitment Insufficient. - Where the court counselor merely stated that a juvenile "probably" would not be accepted into alternative placements, the evidence did not support a finding that other alternatives were explored as required by former section before the juvenile was committed to the Division of Youth Services. In re Robinson, 132 N.C. App. 122, 510 S.E.2d 190 (1999).

Implication of Separation as Pre-Condition to Reunification Deemed Prejudicial. - 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).

Findings and Conclusions Contained in Dispositional Order Not Applicable to Conditional Release. - Findings that a juvenile defendant violated his release conditions based upon his failure to comply with the rules and regulations of his group home, and that the violations were without just cause or legal dispute were sufficient to support the trial court's revocation of defendant's post-release supervision pursuant to G.S. 7B-2516; because a conditional release from the Department of Juvenile Justice and Delinquency Prevention was not the same as probation or final discharge, the requisite findings and conclusions contained in a dispositional order pursuant to G.S. 7B-2512 were not applicable. Once defendant's post-release supervision was revoked, return to the Youth Development Center was mandated by G.S. 7B-2516(c). In re D.M., 192 N.C. App. 729, 666 S.E.2d 501 (2008).

Trial Court Failed to Include Findings of Fact in Dispositional Order. - Trial court failed to follow the procedure contemplated by G.S. 7B-2413, G.S. 7B-2501, and G.S. 7B-2512 for dispositional hearings because it failed to include the requisite findings of fact in its dispositional order; regarding the dispositional hearing, the trial court must conclude the adjudication stage of the proceedings, receive the predisposition report, then proceed to the dispositional hearing. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

District court failed to enter its disposition in accordance with G.S. 7B-2501(c) and G.S. 7B-2512 where, assuming arguendo that the court's categorization of defendant juvenile's simple assault offense as minor and its statement that defendant needed to learn the significance of victimizing people and the consequences of that, sufficiently addressed the first two G.S. 7B-2501(c) factors, it did not consider the last three factors, including the importance of protecting the public safety, the degree of culpability indicated by the circumstances of the case, and the rehabilitative and treatment needs of the juvenile based on a risk and needs assessment. In re K.C., 226 N.C. App. 452, 742 S.E.2d 239 (2013), review denied, 747 S.E.2d 530, 2013 N.C. LEXIS 786 (2013).

Dispositional order was deficient because although the trial court addressed three of the factors set forth in G.S. 7B-2501(c), it did not consider each factor in that section; the form order specifically instructed the trial court to list any additional findings regarding the subsection (c) factors if they were not found elsewhere in the order or incorporated documents, and the supplemental reports and assessments did not address these factors. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696 (2018).

Findings Sufficient. - Sufficient factual findings were made in a dispositional order concerning appellant, a juvenile, because the trial court found, beyond a reasonable doubt, (1) crimes were premeditated and willful, (2) a sex crime was very serious, (3) the juvenile denied charges and said sex offender treatment would not benefit the juvenile, and the juvenile had attention deficit hyperactivity disorder symptoms, requiring a controlled environment, and (4) the juvenile's family's proximity to and relationship with the victim's family made the juvenile's release too dangerous. In re G.C., 230 N.C. App. 511, 750 S.E.2d 548 (2013).

Juvenile's dispositional order did not err for not considering statutory factors because (1) G.S. 7B-2512 did not require findings on those factors, and (2) the court considered the factors, as finding a robbery with a dangerous weapon adjudication showed the crime's seriousness was considered, findings of repeated probation violations showed a need to hold the juvenile accountable was considered, findings of the juvenile's adjudication for armed robbery and school suspension for fighting showed public protection was considered, findings of how the juvenile violated probation showed degree of culpability was considered, and finding the juvenile's failure to obtain treatment showed treatment needs were considered. In re D.E.P., 251 N.C. App. 752, 796 S.E.2d 509 (2017).

Cited in In re D.M., 192 N.C. App. 729, 666 S.E.2d 501 (2008); In re V.M., 211 N.C. App. 389, 712 S.E.2d 213 (2011); In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014).


§ 7B-2513. Commitment of delinquent juvenile to Division.

  1. Pursuant to G.S. 7B-2506 and G.S. 7B-2508, the court may commit a delinquent juvenile who is at least 10 years of age to the Division for placement in a youth development center. Commitment shall be for an indefinite term of at least six months.
  2. For an offense the juvenile committed prior to reaching the age of 16 years, the term shall not exceed:
    1. The twenty-first birthday of the juvenile if the juvenile has been committed to the Division for an offense that would be first-degree murder pursuant to G.S. 14-17, first-degree forcible rape pursuant to G.S. 14-27.21, first-degree statutory rape pursuant to G.S. 14-27.24, first-degree forcible sexual offense pursuant to G.S. 14-27.26, or first-degree statutory sexual offense pursuant to G.S. 14-27.29 if committed by an adult;
    2. The nineteenth birthday of the juvenile if the juvenile has been committed to the Division for an offense that would be a Class B1, B2, C, D, or E felony if committed by an adult, other than an offense set forth in subdivision (1) of this subsection; or
    3. The eighteenth birthday of the juvenile if the juvenile has been committed to the Division for an offense other than an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult.
  3. For an offense the juvenile committed while the juvenile was at least 16 years of age but less than 17 years of age, the term shall not exceed the juvenile's nineteenth birthday.
  4. For an offense the juvenile committed while the juvenile was at least 17 years of age, the term shall not exceed the juvenile's twentieth birthday.
  5. No juvenile shall be committed to a youth development center beyond the minimum six-month commitment for a period of time in excess of the maximum term of imprisonment for which an adult in prior record level VI for felonies or in prior conviction level III for misdemeanors could be sentenced for the same offense, except when the Division pursuant to G.S. 7B-2515 determines that the juvenile's commitment needs to be continued for an additional period of time to continue care or treatment under the plan of care or treatment developed under subsection (f) of this section. At the time of commitment to a youth development center, the court shall determine the maximum period of time the juvenile may remain committed before a determination must be made by the Division pursuant to G.S. 7B-2515 and shall notify the juvenile of that determination.
  6. The court may commit a juvenile to a definite term of not less than six months and not more than two years if the court finds that the juvenile is 14 years of age or older, has been previously adjudicated delinquent for two or more felony offenses, and has been previously committed to a youth development center.
  7. The chief court counselor shall have the responsibility for transporting the juvenile to the youth development center designated by the Division. The juvenile shall be accompanied to the youth development center by a person of the same sex.
  8. The chief court counselor shall ensure that the records requested by the Division accompany the juvenile upon transportation for admittance to a youth development center or, if not obtainable at the time of admission, are sent to the youth development center within 15 days of the admission. If records requested by the Division for admission do not exist, to the best knowledge of the chief court counselor, the chief court counselor shall so stipulate in writing to the youth development center. If such records do exist, but the chief court counselor is unable to obtain copies of them, a district court may order that the records from public agencies be made available to the youth development center. Records that are confidential by law shall remain confidential and the Division shall be bound by the specific laws governing the confidentiality of these records. All records shall be used in a manner consistent with the best interests of the juvenile.
  9. A commitment order accompanied by information requested by the Division shall be forwarded to the Division. The Division shall place the juvenile in the youth development center that would best provide for the juvenile's needs and shall notify the committing court. The Division may assign a juvenile committed for delinquency to any institution of the Division or licensed by the Division, which program is appropriate to the needs of the juvenile.
  10. When the court commits a juvenile to the Division for placement in a youth development center, the Division shall prepare a plan for care or treatment within 30 days after assuming custody of the juvenile.
  11. Commitment of a juvenile to the Division for placement in a youth development center does not terminate the court's continuing jurisdiction over the juvenile and the juvenile's parent, guardian, or custodian. Commitment of a juvenile to the Division for placement in a youth development center transfers only physical custody of the juvenile. Legal custody remains with the parent, guardian, custodian, agency, or institution in whom it was vested.
  12. Pending placement of a juvenile with the Division, the court may house a juvenile who has been adjudicated delinquent for an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult in a holdover facility up to 72 hours if the court, based on the information provided by the juvenile court counselor, determines that no acceptable alternative placement is available and the protection of the public requires that the juvenile be housed in a holdover facility.
  13. A juvenile who is committed to the Division for placement in a youth development center shall be tested for the use of controlled substances or alcohol. The results of this initial test shall be incorporated into the plan of care as provided in subsection (f) of this section and used for evaluation and treatment purposes only.
  14. Repealed by Session Laws 2019-216, s. 15, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

The Division, after assessment of the juvenile, may provide commitment services to the juvenile in a program not located in a youth development center or detention facility. If the Division recommends that commitment services for the juvenile are to be provided in a setting that is not located in a youth development center or detention facility, the Division shall file a motion, along with information about the recommended services for the juvenile, with the committing court prior to placing the juvenile in the identified commitment program. The Division shall send notice of the motion to the District Attorney, the juvenile, and the juvenile's attorney. Upon receipt of the motion filed by the Division, the court may enter an order without the appearance of witnesses and without hearing if the court determines that the identified commitment program is appropriate and a hearing is not necessary. The court must hold a hearing if the juvenile or the juvenile's attorney requests a hearing. If the court notifies the Division of its intent to hold a hearing, the date for that hearing shall be set by the court and the Division shall place the juvenile in a youth development center or detention facility until the determination of the court at that hearing.

History

(1979, c. 815, s. 1; 1983, c. 133, s. 2; 1987, c. 100; c. 372; 1991, c. 434, ss. 2, 3; 1995 (Reg. Sess., 1996), c. 609, s. 2; 1997-443, s. 11A.118(a); 1998-202, s. 6; 1999-423, s. 1; 2000-137, s. 3; 2001-95, s. 5; 2001-490, s. 2.26; 2003-53, s. 1; 2011-145, s. 19.1( l ); 2015-181, s. 27; 2017-57, s. 16D.4(i); 2018-142, s. 23(b); 2019-216, s. 15.)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2512 and was recodified as this section at the direction of the Revisor of Statutes.

The references in subsections (a) and (j) to G.S. 7B-2515 and 7B-2514, respectively, were substituted for G.S. 7B-2514 and 7B-2513 following their recodification at the direction of the Revisor of Statutes.

Session Laws 2012-142, s. 11.1(a), (b), provides: "(a) The Division of Adult Correction of the Department of Public Safety shall give priority to the B.R.I.D.G.E. Youthful Offenders Program operated in cooperation with the North Carolina Forest Service when assigning youthful offenders from the Western Youth Institution to work programs.

"(b) The North Carolina Forest Service shall submit an annual report on the B.R.I.D.G.E. Youthful Offenders Program no later than October 1 of each year beginning October 1, 2012, to the Fiscal Research Division, the Chairs of the House Appropriations Subcommittee on Natural and Economic Resources and the Senate Appropriations Committee on Natural and Economic Resources, the Chairs of the House Appropriations Subcommittee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety, the Joint Legislative Commission on Governmental Operations, and the Joint Legislative Oversight Committee on Justice and Public Safety. The report shall include the following information for the prior fiscal year:

"(2) The number of youthful offenders participating in B.R.I.D.G.E.

"(3) The average daily participation in B.R.I.D.G.E.

"(4) The average duration of participation in B.R.I.D.G.E.

"(5) Summary of activities of B.R.I.D.G.E. participants."

Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.' "

Session Laws 2012-142, s. 27.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year."

Session Laws 2012-142, s. 27.7, is a severability clause.

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 2017-57, s. 16D.4(tt), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(i), rewrote subsection (a) and added subsections (a1) through (a4).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2019-216, s. 17, made the repeal of subsection (j) by Session Laws 2019-216, s. 15, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in the section heading and throughout the section.

Session Laws 2015-181, s. 27, effective December 1, 2015, and applicable to offenses committed on or after that date, updated the statutory references in subdivision (a)(1).

Session Laws 2017-57, s. 16D.4(i), rewrote subsection (a) and added subsections (a1) through (a4). For effective date and applicability, see editor's note.

Session Laws 2019-216, s. 15, effective August 31, 2019, deleted subsection (j). For effective date and applicability, see editor's note.

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Purpose of Section and Amendment. - This section allows a trial court to commit a juvenile for the maximum period of time that any adult could be committed for the same offense, without considering prior record levels and aggravating/mitigating factors as required under structured sentencing for adults; this interpretation is supported by the purpose of disposition in juvenile actions and the amendment effective December 1, 1996. In re Carter, 125 N.C. App. 140, 479 S.E.2d 284 (1996).

Equal Protection Rights Not Violated. - There is a rational basis for the legislature's disparate treatment of adults and children, and, therefore, this section was not unconstitutionally applied to a juvenile in derogation of her equal protection rights, notwithstanding that she was committed to the custody of the state for longer than the period for which an adult could have been imprisoned for her conduct, i.e., unauthorized use of a motor vehicle. In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001).

Detailed Findings Required. - The trial judge must recite detailed findings in support of either test enunciated under this section, and those enumerated findings must be supported by some evidence in the record of the dispositional hearing. In re Khork, 71 N.C. App. 151, 321 S.E.2d 487 (1984).

Findings Must Be Supported by Evidence in Hearing Record. - The essential element in the commitment order is not that it recites detailed findings beyond the two tests enumerated in this section, but that those enumerated findings are supported by some evidence in the record of the dispositional hearing. In re Lail, 55 N.C. App. 238, 284 S.E.2d 731 (1981).

Effect of Lack of Evidence to Support Findings. - Where 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, the 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).

Consecutive commitments are not contrary to the philosophy of the Juvenile Code. Such reasoning would mean that once a juvenile had been committed to a detention facility or training school (now youth development center) he would be free to commit whatever other illegal acts he so chose, knowing that he could not receive any additional punishment for his action. This was not the intention of the legislature when it adopted the Juvenile Code. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

The Juvenile Code does not contain any provision which prohibits the commitment of a juvenile to consecutive terms of detention. Absent an express prohibition, the common-law rule that the courts have the authority to commit offenders to consecutive terms of confinement is controlling. In re Thompson, 74 N.C. App. 329, 327 S.E.2d 908, cert. denied, 314 N.C. 666, 335 S.E.2d 499 (1985).

Recommittal After Revocation of Conditional Release. - When a juvenile judge revokes a conditional release, the previous order provides authority for recommittal to the Division of Youth Services; no new order with the findings required by this section is necessary. In re Baxley, 74 N.C. App. 527, 328 S.E.2d 831, cert. denied, 314 N.C. 330, 333 S.E.2d 483 (1985).

Inadequate Exploration of Alternatives to Commitment. - Judge had affirmative obligation to inquire into and to seriously consider merits of alternative dispositions; therefore, his failure to do so was error, even though court counselor failed to inform judge of any programs that might be appropriate for child. Judge did not consider any of the broad range of community-level alternatives (except probation) listed in former G.S. 7A-647, 7A-648, or 7A-649 of the Juvenile Code, and although child's attorney offered several examples of appropriate alternative programs, judge apparently failed to entertain these, simply accepting as dispositive court counselor's statement that drug rehabilitation program was available. In re Groves, 93 N.C. App. 34, 376 S.E.2d 481 (1989).

Where the court counselor merely stated that a juvenile "probably" would not be accepted into alternative placements, the evidence did not support a finding that other alternatives were explored as required by former section before the juvenile was committed to the Division of Youth Services. In re Robinson, 132 N.C. App. 122, 510 S.E.2d 190 (1999).

Parent's Inability to Pay for Treatment Did Not Amount to "Attempt." - Inability of child's mother to pay for drug treatment did not amount to an attempt at drug rehabilitation; determination of what disposition is appropriate for a given juvenile cannot be predicated on the parent's ability, or inability, to pay. In re Groves, 93 N.C. App. 34, 376 S.E.2d 481 (1989).

Commitment Within Discretion of Court. - It is within the discretion of the trial court to commit a juvenile to the Division of Youth Services, and there is no requirement that a recommendation for training school (now youth development center) be made before a commitment is ordered. In re Molina, 132 N.C. App. 373, 511 S.E.2d 679 (1999).

Commitment to training school (now youth development center) was inappropriate where trial judge found that child was threat to himself, not to others, and where two shoplifting incidents comprised the only threat child posed to property of citizens of community. In re Groves, 93 N.C. App. 34, 376 S.E.2d 481 (1989).

Fact that juvenile ran away from placements outside her home was not itself evidence of a "threat to persons or property in the community." In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Unauthorized use of a motor vehicle, standing alone, was insufficient to support a finding that juvenile was a threat to persons or property. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Reasonable and Available Nonstatutory Alternatives. - Prior to committing a juvenile to the Division of Youth Services, the court must also consider any reasonable and available nonstatutory community-level alternatives. In re Mosser, 99 N.C. App. 523, 393 S.E.2d 308 (1990).

Seriousness of Offense Cannot Be Sole Basis for Commitment. - A juvenile may not be committed to training school (now youth development center) based upon the perceived seriousness of the offense alone. In re Randall, 99 N.C. App. 356, 393 S.E.2d 121 (1990), citing In re Khork, 71 N.C. App. 151, 321 S.E.2d 487 (1984).

Commitment Warranted. - Where juvenile was initially placed on probation as an "undisciplined" child for unlawful absence from school, and his probation was continued when he was adjudicated a delinquent for damage to property by shooting out the windows and screens of a home with an air rifle and again when he was adjudicated a delinquent for stealing $60.00 from a purse, his probationary status resulted from delinquent behavior rather than merely from the undisciplined behavior upon which it was initially grounded, and the juvenile court had authority to commit him to the custody of the Division of Youth Services for placement in one of its residential facilities upon finding him in violation of the conditions of his probation subsequent to the adjudications that he was delinquent. In re Hughes, 50 N.C. App. 258, 273 S.E.2d 324 (1981).

Court exhausted all alternatives and properly committed a juvenile to training school (now youth development center) after the juvenile violated conditions of probation for second degree rape and taking indecent liberties with a child. In re Molina, 132 N.C. App. 373, 511 S.E.2d 679 (1999).

Maximum Period Permitted. - Trial court did not err in sentencing defendant, a juvenile, to just under 24 months for breaking and entering a motor vehicle, as trial court could commit defendant for the maximum period of time that any adult could be committed for the same offense, without considering prior record levels and aggravating/mitigating factors as required under structured sentencing for adults, and the maximum term for any adult was 24 months under G.S. 15A-1340.17(c) and (d). In re R.D., 243 N.C. App. 61, 776 S.E.2d 685 (2015).

Findings Held Unsupported. - Findings of fact that alternatives to commitment as contained in former G.S. 7A-649 had been attempted unsuccessfully or were inappropriate and that juvenile's behavior constituted a threat to persons or property in the community, made under subsection (a) of this section, held unsupported by the evidence. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

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).

Court Authorized to Oversee Plans for Release. - District court was authorized continually to oversee Division of Youth Services' plans for delinquent juvenile's release. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).

Cited in In re J.S.W., 211 N.C. App. 620, 711 S.E.2d 471 (2011).


§ 7B-2514. Post-release supervision planning; release.

  1. The Division shall be responsible for evaluation of the progress of each juvenile at least once every six months as long as the juvenile remains in the care of the Division. Any determination that the juvenile should remain in the care of the Division for an additional period of time shall be based on the Division's determination that the juvenile requires additional treatment or rehabilitation pursuant to G.S. 7B-2515. If the Division determines that a juvenile is ready for release, the Division shall initiate a post-release supervision planning process. The post-release supervision planning process shall be defined by rules and regulations of the Division, but shall include the following:
    1. Written notification shall be given to the court that ordered commitment.
    2. A post-release supervision planning conference shall be held involving as many as possible of the following: the juvenile, the juvenile's parent, guardian, or custodian, juvenile court counselors who have supervised the juvenile on probation or will supervise the juvenile on post-release supervision, and staff of the facility that found the juvenile ready for release. The planning conference shall include personal contact and evaluation rather than telephonic notification.
    3. The planning conference participants shall consider, based on the individual needs of the juvenile and pursuant to rules adopted by the Division, placement of the juvenile in any program under the auspices of the Division, including the juvenile court services programs that, in the judgment of the Division, would be appropriate transitional placement, pending release under G.S. 7B-2513.
  2. The Division shall develop the plan in writing and base the terms on the needs of the juvenile and the protection of the public. Every plan shall require the juvenile to complete at least 90 days, but not more than one year, of post-release supervision.
  3. The Division shall release a juvenile under a plan of post-release supervision at least 90 days prior to:
    1. Completion of the juvenile's definite term of commitment; or
    2. The juvenile's twenty-first birthday if the juvenile has been committed to the Division for an offense that would be first-degree murder pursuant to G.S. 14-17, first-degree forcible rape pursuant to G.S. 14-27.21, first-degree statutory rape pursuant to G.S. 14-27.24, first-degree forcible sexual offense pursuant to G.S. 14-27.26, or first-degree statutory sexual offense pursuant to G.S. 14-27.29 if committed by an adult.
    3. The juvenile's nineteenth birthday if the juvenile has been committed to the Division for an offense that would be a Class B1, B2, C, D, or E felony if committed by an adult, other than an offense set forth in G.S. 7B-1602(a).
    4. The juvenile's eighteenth birthday if the juvenile has been committed to the Division for an offense other than an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult.
  4. Notwithstanding Articles 30 and 31 of Subchapter III of this Chapter, and in addition to any notice to the victim required pursuant to G.S. 7B-2055, at least 45 days before releasing to post-release supervision a juvenile who was committed for a Class A or B1 felony, the Division shall notify by first-class mail at the last known address all of the following:
    1. The juvenile.
    2. The juvenile's parent, guardian, or custodian.
    3. The district attorney of the district where the juvenile was adjudicated.
    4. The head of the enforcement agency that took the juvenile into custody.
    5. Repealed by Session Laws 2019-216, s. 11, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.
  5. The Division may release a juvenile under an indefinite commitment to post-release supervision only after the juvenile has been committed to the Division for placement in a youth development center for a period of at least six months.
  6. A juvenile committed to the Division for placement in a youth development center for a definite term shall receive credit toward that term for the time the juvenile spends on post-release supervision.
  7. A juvenile on post-release supervision shall be supervised by a juvenile court counselor. Post-release supervision shall be terminated by order of the court.

The notification shall include only the juvenile's name, offense, date of commitment, and date proposed for release. A copy of the notice shall be sent to the appropriate clerk of superior court for placement in the juvenile's court file.

History

(1979, c. 815, s. 1; 1983, c. 133, s. 1; c. 276, s. 1; 1989, c. 235; 1996, 2nd Ex. Sess., c. 18, s. 23.2(e); 1998-202, s. 6; 2000-137, s. 3; 2001-95, s. 5; 2001-490, ss. 2.27, 2.28; 2011-145, s. 19( l ); 2015-181, s. 28; 2019-216, s. 11.)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2513 and was recodified as this section at the direction of the Revisor of Statutes.

The reference in subsection (a) to G.S. 7B-2513 and 7B-2515 were substituted for G.S. 7B-2512 and 7B-2514 following their recodification at the direction of the Revisor of Statutes.

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 2019-216, s. 17, made the amendments to subsection (d) of this section by Session Laws 2019-216, s. 11, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division's" for "Department's" in the second sentence of (a), and "Division" for "Department" throughout the section.

Session Laws 2015-181, s. 28, effective December 1, 2015, and applicable to offenses committed on or after that date, updated the statutory references in subdivision (c)(2).

Session Laws 2019-216, s. 11, in subsection (d), inserted "and in addition to any notice to the victim required pursuant to G.S. 7B-2055" and "all of the following" in the introductory paragraph; deleted subdivision (d)(5); and made stylistic changes. For effective date and applicability, see editor's note.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Nature of Conditional Release. - A conditional release from the Division of Youth Services is not the same as probation or final discharge. A juvenile on conditional release is still technically subject to the original order committing him to the Division of Youth Services, which is the basis of whatever restrictions on his activity might be deemed appropriate as aftercare supervision. In re Baxley, 74 N.C. App. 527, 328 S.E.2d 831, cert. denied, 314 N.C. 330, 333 S.E.2d 483 (1985).

Recommittal After Revocation of Conditional Release. - When a juvenile judge revokes a conditional release, the previous order provides authority for recommittal to the Division of Youth Services; no new order with the findings required by former G.S. 7A-652 is necessary. In re Baxley, 74 N.C. App. 527, 328 S.E.2d 831, cert. denied, 314 N.C. 330, 333 S.E.2d 483 (1985).

Denial of Conditional Release on Failure to Give 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).

Cited in In re D.L.H., 364 N.C. 214, 694 S.E.2d 753 (June 17, 2010); In re J.S.W., 211 N.C. App. 620, 711 S.E.2d 471 (2011).

Applied in In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).


§ 7B-2515. Notification of extended commitment; plan of treatment.

  1. In determining whether a juvenile who was committed to the Division for an offense that was committed prior to the juvenile reaching the age of 16 years should be released before the juvenile's 18th birthday, the Division shall consider the protection of the public and the likelihood that continued placement will lead to further rehabilitation. If the Division does not intend to release the juvenile prior to the juvenile's eighteenth birthday, or if the Division determines that the juvenile's commitment should be continued beyond the maximum commitment period as set forth in G.S. 7B-2513(a4), the Division shall notify the juvenile and the juvenile's parent, guardian, or custodian in writing at least 30 days in advance of the juvenile's eighteenth birthday or the end of the maximum commitment period, of the additional specific commitment period proposed by the Division, the basis for extending the commitment period, and the plan for future care or treatment.
  2. In determining whether a juvenile who was committed to the Division for an offense that was committed while the juvenile was at least 16 years of age but less than 17 years of age should be released before the juvenile's nineteenth birthday, the Division shall consider the protection of the public and the likelihood that continued placement will lead to further rehabilitation. If the Division does not intend to release the juvenile prior to the juvenile's nineteenth birthday, or if the Division determines that the juvenile's commitment should be continued beyond the maximum commitment period as set forth in G.S. 7B-2513(a4), the Division shall notify the juvenile and the juvenile's parent, guardian, or custodian in writing, at least 30 days in advance of the juvenile's nineteenth birthday or the end of the maximum commitment period, of the additional specific commitment period proposed by the Division, the basis for extending the commitment period, and the plan for future care or treatment.
  3. In determining whether a juvenile who was committed to the Division for an offense that was committed while the juvenile was at least 17 years of age but less than 18 years of age should be released before the juvenile's twentieth birthday, the Division shall consider the protection of the public and the likelihood that continued placement will lead to further rehabilitation. If the Division does not intend to release the juvenile prior to the juvenile's twentieth birthday, or if the Division determines that the juvenile's commitment should be continued beyond the maximum commitment period as set forth in G.S. 7B-2513(a4), the Division shall notify the juvenile and the juvenile's parent, guardian, or custodian in writing, at least 30 days in advance of the juvenile's twentieth birthday or the end of the maximum commitment period, of the additional specific commitment period proposed by the Division, the basis for extending the commitment period, and the plan for future care or treatment.
  4. The Division shall modify the plan of care or treatment developed pursuant to G.S. 7B-2513(f) to specify (i) the specific goals and outcomes that require additional time for care or treatment of the juvenile; (ii) the specific course of treatment or care that will be implemented to achieve the established goals and outcomes; and (iii) the efforts that will be taken to assist the juvenile's family in creating an environment that will increase the likelihood that the efforts to treat and rehabilitate the juvenile will be successful upon release. If appropriate, the Division may place the juvenile in a setting other than a youth development center.
  5. The juvenile and the juvenile's parent, guardian, or custodian may request a review by the court of the Division's decision to extend the juvenile's commitment pursuant to this section, in which case the court shall conduct a review hearing. The court may modify the Division's decision and the juvenile's maximum commitment period. If the juvenile or the juvenile's parent, guardian, or custodian does not request a review of the Division's decision, the Division's decision shall become the juvenile's new maximum commitment period.

History

(1998-202, s. 6; 1998-217, s. 57(1); 2000-137, s. 3; 2001-95, s. 5; 2011-145, s. 19.1( l ); 2017-57, s. 16D.4(j); 2018-142, s. 23(b).)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2514 and was recodified as this section at the direction of the Revisor of Statutes.

The references in subsections (a) and (b) to G.S. 7B-2513 were substituted for G.S. 7B-2512 following its recodification at the direction of the Revisor of Statutes.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(j), in subsection (a), inserted "who was committed to the Division for an offense that was committed prior to the juvenile reaching the age of 16 years” in the first sentence, and substituted "G.S. 7B-2513(a4)” for "G.S. 7B-2513(a)” in the second sentence; added subsections (a1) and (a2); and substituted "pursuant to this section” for "beyond the juvenile's eighteenth birthday or maximum commitment period” in the first sentence of subsection (c).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" and "Division's" for "Department's" throughout the section.

Session Laws 2017-57, s. 16D.4(j), in subsection (a), inserted "who was committed to the Division for an offense that was committed prior to the juvenile reaching the age of 16 years" in the first sentence, and substituted "G.S. 7B-2513(a4)" for " G.S. 7B-2513(a)" in the second sentence; added subsections (a1) and (a2); and substituted "pursuant to this section" for "beyond the juvenile's eighteenth birthday or maximum commitment period" in the first sentence of subsection (c). For effective date and applicability, see editor's note.

CASE NOTES

Construction. - In view of the fact that the relevant statutory language clearly and unambiguously requires that the notice of the proposed extension provided to the juvenile and his or her parents be in writing, it must be construed using its plain meaning; since the notice provisions represent an attempt to address the same considerations that underlie fundamental due process protections, the notice provisions of are not construed as directory rather than mandatory. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Failure to Comply With Notice Requirement. - Given that nothing in subsection (a) authorizes the courts to overlook the existence of deficient notice based on any failure on defendant juvenile's part to making a showing of actual prejudice, the court of appeals lacked explicit statutory authority to absolve the State from the failure of the Division of Juvenile Justice to comply with the notice requirements. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Trial court erred in denying defendant juvenile's motion to be released from commitment because the Division of Juvenile Justice failed to comply with the notice requirement, and the provision of adequate notice had a direct impact upon the ability of defendant and his parents to contest the extension; no written notice of the final extension decision was provided to defendant or his father until the date upon which the Division officially approved the recommendation. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Trial court erred in denying defendant juvenile's motion to be released from commitment because the Division of Juvenile Justice failed to comply with the notice requirement; the fact that defendant juvenile's father received oral notice of the recommendation that defendant's period of commitment would be extended did not provide any justification for a decision to overlook the Division's failure to provide written notice of the extension decision to the father in a timely manner. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Effect of Extension. - In view of the fact that a person subject to post-release supervision must comply with significant restrictions and the fact that any failure on a juvenile's part to comply with the conditions of post-release supervision can result in his or her commitment to the custody of the Division of Juvenile Justice, the length of a particular juvenile's period of commitment has potential effects which extend well beyond the date upon which he or she is released from the custody of the Division. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Appeal Not Moot. - Defendant juvenile's appeal of an order denying his motion to be released from commitment was not rendered moot by his release because a decision that defendant's period of commitment had been improperly extended would have a practical impact on his life. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Cited in In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001).


§ 7B-2516. Revocation of post-release supervision.

  1. On motion of the juvenile court counselor providing post-release supervision or motion of the juvenile, or on the court's own motion, and after notice, the court may hold a hearing to review the progress of any juvenile on post-release supervision at any time during the period of post-release supervision. With respect to any hearing involving allegations that the juvenile has violated the terms of post-release supervision, the juvenile:
    1. Shall have reasonable notice in writing of the nature and content of the allegations in the motion, including notice that the purpose of the hearing is to determine whether the juvenile has violated the terms of post-release supervision to the extent that post-release supervision should be revoked;
    2. Shall be represented by an attorney at the hearing;
    3. Shall have the right to confront and cross-examine witnesses; and
    4. May admit, deny, or explain the violation alleged and may present proof, including affidavits or other evidence, in support of the juvenile's contentions. A record of the proceeding shall be made and preserved in the juvenile's record.
  2. If the court determines by the greater weight of the evidence that the juvenile has violated the terms of post-release supervision, the court may revoke the post-release supervision or make any other disposition authorized by this Subchapter.
  3. If the court revokes post-release supervision, the juvenile shall be returned to the Division for placement in a youth development center for an indefinite term of at least 90 days, provided, however, that no juvenile shall remain committed to the Division for placement in a youth development center past:
    1. The juvenile's twenty-first birthday if the juvenile has been committed to the Division for an offense that would be first-degree murder pursuant to G.S. 14-17, first-degree forcible rape pursuant to G.S. 14-27.21, first-degree statutory rape pursuant to G.S. 14-27.24, first-degree forcible sexual offense pursuant to G.S. 14-27.26, or first-degree statutory sexual offense pursuant to G.S. 14-27.29 if committed by an adult.
    2. The juvenile's nineteenth birthday if the juvenile has been committed to the Division for an offense that would be a Class B1, B2, C, D, or E felony if committed by an adult, other than an offense set forth in G.S. 7B-1602(a).
    3. The juvenile's eighteenth birthday if the juvenile has been committed to the Division for an offense other than an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2000-137, s.3; 2001-95, s. 5; 2001-490, s. 2.29; 2011-145, s. 19.1( l ); 2015-181, s. 29.)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2515 and was recodified as this section at the direction of the Revisor of Statutes.

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."

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" throughout the section.

Session Laws 2015-181, s. 29, effective December 1, 2015, and applicable to offenses committed on or after that date, updated the statutory references in subdivision (c)(1).

CASE NOTES

Effect of Extension. - In view of the fact that a person subject to post-release supervision must comply with significant restrictions and the fact that any failure on a juvenile's part to comply with the conditions of post-release supervision can result in his or her commitment to the custody of the Division of Juvenile Justice, the length of a particular juvenile's period of commitment has potential effects which extend well beyond the date upon which he or she is released from the custody of the Division. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Findings Sufficient to Support Revocation of Post-Release Supervision. - Findings that a juvenile defendant violated his release conditions based upon his failure to comply with the rules and regulations of his group home, and that the violations were without just cause or legal dispute were sufficient to support the trial court's revocation of defendant's post-release supervision pursuant to G.S. 7B-2516; because a conditional release from the Department of Juvenile Justice and Delinquency Prevention was not the same as probation or final discharge, the requisite findings and conclusions contained in a dispositional order pursuant to G.S. 7B-2512 were not applicable. Once defendant's post-release supervision was revoked, return to the Youth Development Center was mandated by G.S. 7B-2516(c). In re D.M., 192 N.C. App. 729, 666 S.E.2d 501 (2008).

Trial court's revocation of a juvenile's post-release supervision was proper, pursuant to G.S. 7B-2516, even though the trial court dismissed the case against the juvenile for resisting a public officer, because the trial court found the juvenile missed school without an excuse and was suspended for the remainder of the school year, both of which were conditions of the juvenile's post-release supervision. In re A.J. M.-B., 212 N.C. App. 586, 713 S.E.2d 104 (2011).

Applied in In re D.M., 192 N.C. App. 729, 666 S.E.2d 501 (2008).


§ 7B-2517. Transfer authority of Governor.

The Governor may order transfer of any person less than 18 years of age from any jail or penal facility of the State to one of the residential facilities operated by the Division in appropriate circumstances, provided the Governor shall consult with the Division concerning the feasibility of the transfer in terms of available space, staff, and suitability of program.

When an inmate, committed to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, is transferred by the Governor to a residential program operated by the Division, the Division may release the juvenile based on the needs of the juvenile and the best interests of the State. Transfer shall not divest the probation or parole officer of the officer's responsibility to supervise the inmate on release.

History

(1979, c. 815, s. 1; 1997-443, s. 11A.118(a); 1998-202, s. 6; 2000-137, s. 3; 2011-145, ss. 19.1(h), ( l ); 2017-186, s. 2( l ).)

Editor's Note. - This section was originally enacted by Session Laws 1998-202, s. 6, as G.S. 7B-2516 and was recodified as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-145, s. 19.1(h) and ( l ), effective January 1, 2012, substituted "Division of Adult Correction of the Department of Public Safety" for "Department of Correction" in the first sentence of the second paragraph, and substituted "Division" for "Department" throughout.

Session Laws 2017-186, s. 2( l ), effective December 1, 2017, inserted "and Juvenile Justice" in the first sentence of the second paragraph.

ARTICLE 26. Modification and Enforcement of Dispositional Orders; Appeals.

Sec.

§ 7B-2600. Authority to modify or vacate.

  1. Upon motion in the cause or petition, and after notice, the court may conduct a review hearing to determine whether the order of the court is in the best interests of the juvenile, and the court may modify or vacate the order in light of changes in circumstances or the needs of the juvenile.
  2. In a case of delinquency, the court may reduce the nature or the duration of the disposition on the basis that it was imposed in an illegal manner or is unduly severe with reference to the seriousness of the offense, the culpability of the juvenile, or the dispositions given to juveniles convicted of similar offenses.
  3. In any case where the court finds the juvenile to be delinquent or undisciplined, the jurisdiction of the court to modify any order or disposition made in the case shall continue (i) during the minority of the juvenile, (ii) until the juvenile reaches the age of 19 years if the juvenile has been adjudicated delinquent and committed to the Division for an offense that would be a Class B1, B2, C, D, or E felony if committed by an adult, other than an offense set forth in G.S. 7B-1602(a), (iii) until the juvenile reaches the age of 21 years if the juvenile has been adjudicated delinquent and committed for an offense that would be first-degree murder pursuant to G.S. 14-17, first-degree forcible rape pursuant to G.S. 14-27.21, first-degree statutory rape pursuant to G.S. 14-27.24, first-degree forcible sexual offense pursuant to G.S. 14-27.26, or first-degree statutory sexual offense pursuant to G.S. 14-27.29 if committed by an adult, or (iv) until terminated by order of the court.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2000-137, s. 3; 2011-145, s. 19.1( l ); 2015-181, s. 30.)

Editor's Note. - Session Laws 1998-202, s. 37(b), makes this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

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."

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in subsection (c).

Session Laws 2015-181, s. 30, effective December 1, 2015, and applicable to offenses committed on or after that date, updated the statutory references in subsection (c).

Legal Periodicals. - For comment, "Negotiating Miller Madness: Why North Carolina Gets Juvenile Resentencing Right While Other States Drop the Ball," see 91 N.C. L. Rev. 2179 (2013).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Finding of Changed Conditions Required. - It is fundamental that before an order may be entered modifying a custody decree, there must be a finding of fact of changed conditions. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428, cert. denied, 316 N.C. 194, 341 S.E.2d 584 (1986).

A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428, cert. denied, 316 N.C. 194, 341 S.E.2d 584 (1986).

For case in which the court found no change in the needs of juvenile requiring that her custody be returned to her parents, see In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23 (1985).

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).

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).

Trial court properly modified a juvenile's dispositional order because the court could not compel the provision of residential sex offender treatment in violation of federal law after having initially ordered the treatment based upon erroneous information, and the facts constituted a change in circumstance under G.S. 7B-2600(a). In re D.G., 191 N.C. App. 752, 663 S.E.2d 458 (2008), appeal dismissed, as moot, 363 N.C. 126, 674 S.E.2d 680 (2009).

Modification Erroneously Denied. - It was error to deny a juvenile's motion to modify the juvenile's disposition because the court wrongly assigned two delinquency history points for being on probation at the time of an offense when the juvenile was not on probation, so the court had no authority to impose a level 3 disposition. In re A.F., 231 N.C. App. 348, 752 S.E.2d 245 (2013).

Cited in In re J.S.W., 211 N.C. App. 620, 711 S.E.2d 471 (2011).


§ 7B-2601. Request for modification for lack of suitable services.

If the Division finds that any juvenile committed to the Division's care is not suitable for its program, the Division may make a motion in the cause so that the court may make an alternative disposition that is consistent with G.S. 7B-2508.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2000-137, s. 3; 2011-145, s. 19.1( l ).)

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" and "Division's" for "Department's."

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

The onus is clearly on the Division of Youth Services to alert the court whenever it finds "that any juvenile committed to its care is not suitable for its program." In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).


§ 7B-2602. Right to appeal.

Upon motion of a proper party as defined in G.S. 7B-2604, review of any final order of the court in a juvenile matter under this Article shall be before the Court of Appeals. Notice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order. However, if no disposition is made within 60 days after entry of the order, written notice of appeal may be given within 70 days after such entry. A final order shall include:

  1. Any order finding absence of jurisdiction;
  2. Any order which in effect determines the action and prevents a judgment from which appeal might be taken;
  3. Any order of disposition after an adjudication that a juvenile is delinquent or undisciplined; or
  4. Any order modifying custodial rights.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

This statute does not authorize an appeal following the adjudicatory portion of a juvenile case, only a final order. In re Pegram, 137 N.C. App. 382, 527 S.E.2d 737 (2000).

This section authorizes an immediate direct appeal to the Court of Appeals of a juvenile transfer order. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Finding of Probable Cause Not Final Order. - A finding of probable cause in a juvenile proceeding was not an appealable "final order" under former G.S. 7A-666 [see now this section], and evidentiary rulings of the trial court in conducting the probable cause hearing were not properly before the Court of Appeals for review. In re Ford, 49 N.C. App. 680, 272 S.E.2d 157 (1980).

A finding of probable cause in a juvenile proceeding did not fall within any of the four categories of final orders specified in former G.S. 7A-666 [see now this section] and, therefore, was not immediately appealable. 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).

An adjudication of delinquency is not a final order. No appeal may be taken from such order unless no disposition is made within 60 days of the adjudication of delinquency. In re Taylor, 57 N.C. App. 213, 290 S.E.2d 797 (1982).

No Trial Court Jurisdiction During Pendency of Appeal - In a juvenile delinquency proceeding, an amended adjudication order and a disposition order had to be vacated because both were entered during the pendency of the juvenile's appeal after no disposition had been entered within 60 days of the adjudication of the juvenile as delinquent. In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

Appellate court was required to vacate and remand a dispositional order in a juvenile delinquency case because the trial court lacked jurisdiction; the trial court entered its adjudication order on May 14, 2013, no disposition was made within 60 days, and appellant, a juvenile, filed notice of appeal from the adjudication order on July 15, 2013. The trial court later held a disposition hearing on January 23, 2014. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341 (2014).

Writ of Certiorari Granted. - Because a juvenile had no right to appeal the interlocutory adjudication order in a delinquency case in that the juvenile was not appealing from any final orders pursuant to G.S. 7B-2602, and because no appealable final order had yet been entered in the case, certiorari was granted to consider the arguments raised by the juvenile regarding his adjudication of delinquency. In re J.V.J., 209 N.C. App. 737, 707 S.E.2d 636 (2011).

As a result of the fact that the date upon which the orders that the juvenile sought to challenge on appeal were entered was unclear, the juvenile might have lost his right to seek appellate review of the orders in question through no fault of his own; as a result, in the exercise of its discretion, the appellate court granted the juvenile's certiorari petition and considered his challenges to the trial court's orders on the merits. In re Z.T.W., 238 N.C. App. 365, 767 S.E.2d 660 (2014).

Oral Notice of Appeal from Final Order. - When the second sentence of this section permitting oral notice of appeal at the hearing, is read in conjunction with the first sentence providing for appellate review only upon any "final order," it appears that oral notice of appeal given at the time of the hearing must be from a final order. In re Hawkins, 120 N.C. App. 585, 463 S.E.2d 268 (1995).

Oral Notice of Appeal from Order That Was Not Final. - In a case in which a juvenile appealed an order by a district court, the appellate court lacked jurisdiction because the juvenile's notice of appeal, given in open court prior to the entry of the juvenile court's final written order, was not a timely notice of appeal. In re D.K.L., 201 N.C. App. 443, 689 S.E.2d 508 (2009).

Appeal from Final Order of Disposition. - Although a trial court dismissed a juvenile's case of resisting a public officer, the adjudication order was not dismissed and the juvenile's appeal of the final order of disposition, pursuant to G.S. 7B-2602, was properly before the appellate court. In re A.J. M.-B., 212 N.C. App. 586, 713 S.E.2d 104 (2011).

Failure To Note Appeals In Timely Manner. - Court of appeals refrained from discussing certain details surrounding the history of defendant's juvenile's involvement in the juvenile justice system and the facts and circumstances surrounding the entry of the earlier orders that had been challenged in his brief because none of the issues were properly before it; defendant failed to note appeals from the orders in a timely manner. In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

Cited in In re Powers, 144 N.C. App. 140, 546 S.E.2d 186 (2001); In re D.A.F., 179 N.C. App. 832, 635 S.E.2d 509 (2006); In re K.D.L., 207 N.C. App. 453, 700 S.E.2d 766 (2010), writ denied and review denied 365 N.C. 90, 706 S.E.2d 478, 2011 N.C. LEXIS 187 (2011); In re G.C., 230 N.C. App. 511, 750 S.E.2d 548 (2013).


§ 7B-2603. Right to appeal transfer decision.

  1. Notwithstanding G.S. 7B-2602, any order transferring jurisdiction of the district court in a juvenile matter to the superior court may be appealed to the superior court for a hearing on the record. Notice of the appeal must be given in open court or in writing within 10 days after entry of the order of transfer in district court.  Entry of an order shall be treated in the same manner as entry of a judgment under G.S. 1A-1, Rule 58 of the North Carolina Rules of Civil Procedure. The clerk of superior court shall provide the district attorney with a copy of any written notice of appeal filed by the attorney for the juvenile. Upon expiration of the 10 day period in which an appeal may be entered, if an appeal has been entered and not withdrawn, the clerk shall transfer the case to the superior court docket. The superior court shall, within a reasonable time, review the record of the transfer hearing for abuse of discretion by the juvenile court in the issue of transfer. The superior court shall not review the findings as to probable cause for the underlying offense.
  2. Once an order of transfer has been entered by the district court, the juvenile has the right to be considered for pretrial release as provided in G.S. 15A-533 and G.S. 15A-534. Any detention of the juvenile pending release shall be in accordance with G.S. 7B-2204.
  3. If an appeal of the transfer order is taken, the superior court shall enter an order either (i) remanding the case to the juvenile court for adjudication or (ii) upholding the transfer order. If the superior court remands the case to juvenile court for adjudication and the juvenile has been granted pretrial release provided in G.S 15A-533 and G.S. 15A-534, the obligor shall be released from the juvenile's bond upon the district court's review of whether the juvenile shall be placed in secure or nonsecure custody as provided in G.S. 7B-1903.
  4. The superior court order shall be an interlocutory order, and the issue of transfer may be appealed to the Court of Appeals only after the juvenile has been convicted in superior court.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1999-309, s. 2; 1999-423, s. 2; 2017-57, s. 16D.4(k); 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(tt), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(k), in subsection (b), substituted "Any detention of the juvenile pending release shall be in accordance with G.S. 7B-2204.” for "The release order shall specify the person or persons to whom the juvenile may be released. Pending release, the court shall order that the juvenile be detained in a detention facility while awaiting trial. The court may order the juvenile to be held in a holdover facility as defined by G.S. 7B-1501 at any time the presence of the juvenile is required in court for pretrial hearings or trial, if the court finds that it would be inconvenient to return the juvenile to the detention facility.”

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4(k), in subsection (b), substituted "Any detention of the juvenile pending release shall be in accordance with G.S. 7B-2204." for "The release order shall specify the person or persons to whom the juvenile may be released. Pending release, the court shall order that the juvenile be detained in a detention facility while awaiting trial. The court may order the juvenile to be held in a holdover facility as defined by G.S. 7B-1501 at any time the presence of the juvenile is required in court for pretrial hearings or trial, if the court finds that it would be inconvenient to return the juvenile to the detention facility." For effective date and applicability, see editor's note.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

This section authorizes an immediate direct appeal to the Court of Appeals of a juvenile transfer order. State v. T.D.R., 347 N.C. App. 489, 495 S.E.2d 700 (1998).

Finding of Probable Cause Not Final Order. - A finding of probable cause in a juvenile proceeding was not an appealable "final order" under former G.S. 7A-666 (see now this section), and evidentiary rulings of the trial court in conducting the probable cause hearing were not properly before the Court of Appeals for review. In re Ford, 49 N.C. App. 680, 272 S.E.2d 157 (1980).

An adjudication of delinquency is not a final order. No appeal may be taken from such order unless no disposition is made within 60 days of the adjudication of delinquency. In re Taylor, 57 N.C. App. 213, 290 S.E.2d 797 (1982).

Oral Notice of Appeal from Final Order. - When the second sentence of this section permitting oral notice of appeal at the hearing, is read in conjunction with the first sentence providing for appellate review only upon any "final order," it appears that oral notice of appeal given at the time of the hearing must be from a final order. In re Hawkins, 120 N.C. App. 585, 463 S.E.2d 268 (1995).

Preservation for Review Not Established. - Defendant juvenile failed to preserve the right to appeal a transfer order because defendant did not appeal the district court's order to the superior court; the General Assembly removed from G.S. 7B-2603, any indication that a juvenile could skip an appeal in the superior court, but still challenge the transfer order after losing a trial in the superior court. State v. Wilson, 151 N.C. App. 219, 565 S.E.2d 223 (2002), cert. denied, 356 N.C. 313, 571 S.E.2d 215 (2002).

No Right to Appeal Transfer Decision Upon Guilty Plea. - Under G.S. 15A-1444, defendant had no right to appeal a transfer decision upon a plea of guilty because the appeal did not fall within any of the categories of appeal permitted under G.S. 15A-1444; moreover, defendant did not petition for a writ of certiorari and G.S. 7B-2603(d) did not establish an exception to G.S. 15A-1444(e). State v. Evans, 184 N.C. App. 736, 646 S.E.2d 859 (2007).

Remand of Case Inappropriate. - Superior court erred in finding that a district court abused the court's discretion in transferring a juvenile's case to the superior court because the superior court failed to properly apply the abuse of discretion standard of review and effectively engaged in a de novo review by making findings on the evidence relating to the factors set forth in G.S. 7B-2203(b); the superior court did not explain in what way the district court's decision was manifestly unreasonable but simply concluded, based on the court's de novo view of the evidence, that transfer was inappropriate. In re E.S., 191 N.C. App. 568, 663 S.E.2d 475 (2008), review denied, 362 N.C. 681, 670 S.E.2d 231 (2008).


§ 7B-2604. Proper parties for appeal.

  1. An appeal may be taken by the juvenile, the juvenile's parent, guardian, or custodian, a county, or the State.
  2. The State's appeal is limited to the following orders in delinquency or undisciplined cases:
    1. An order finding a State statute to be unconstitutional; and
    2. Any order which terminates the prosecution of a petition by upholding the defense of double jeopardy, by holding that a cause of action is not stated under a statute, or by granting a motion to suppress.
  3. A county's appeal is limited to orders in which the county has been ordered to pay for medical, surgical, psychiatric, psychological, or other evaluation or treatment of a juvenile pursuant to G.S. 7B-2502, or other medical, psychiatric, psychological, or other evaluation or treatment of a parent pursuant to G.S. 7B-2702.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2003-171, s. 1.)

CASE NOTES

County May Not Appeal. - It is manifest that this statute (former G.S. 7A-667) does not empower a county to take an appeal in a juvenile proceeding. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981), decided prior to enactment of this chapter.

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).

Cited in In re Powers, 144 N.C. App. 140, 546 S.E.2d 186 (2001); In re K.D.L., 207 N.C. App. 453, 700 S.E.2d 766 (2010), writ denied and review denied 365 N.C. 90, 706 S.E.2d 478, 2011 N.C. LEXIS 187 (2011); In re G.C., 230 N.C. App. 511, 750 S.E.2d 548 (2013).


§ 7B-2605. Disposition pending appeal.

Pending disposition of an appeal, the release of the juvenile, with or without conditions, should issue in every case unless the court orders otherwise. For compelling reasons which must be stated in writing, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile or the State.

History

(1979, c. 815, s. 1; 1987 (Reg. Sess., 1988), c. 1090, s. 12; 1998-202, s. 6.)

Legal Periodicals. - 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. - Many of the following cases were decided prior to the enactment of this Chapter.

Constitutionality of Former G.S. 7A-289. - Former G.S. 7A-289, permitting the district court to enter a temporary custody order affecting a juvenile who is appealing a commitment order of the court, was not unconstitutional on the ground that the statute deprived the juvenile of the right to bail. In re Martin, 9 N.C. App. 576, 176 S.E.2d 849 (1970), decided under former G.S. 7A-289.

Section Controls over G.S. 1-294. - Although G.S. 1-294 states the general rule regarding jurisdiction of the trial court pending appeal, it is not controlling where there is a specific statute, such as former G.S. 7A-669 (see now this section), addressing the matter in question. 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).

Trial Courts Divested of Jurisdiction During Pendency of Appeal - In a juvenile delinquency proceeding, an amended adjudication order and a disposition order had to be vacated because both were entered during the pendency of the juvenile's appeal after no disposition had been entered within 60 days of the adjudication of the juvenile as delinquent. In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

Section Permits Court to Circumvent Recalcitrant Parties. - Without authority of the district court to provide for the treatment of a neglected child pending appeal, a recalcitrant party could frustrate the efforts of the court to provide for the child's best interests by simply entering notice of appeal. 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).

Commitment Held Proper. - Temporary order, which also ordered respondent juvenile to remain in custody of the Department of Social Services and to be placed in a residential treatment facility for ninety days for evaluation purposes, was authorized pursuant to G.S. 7B-2605. In re K.T.L., 177 N.C. App. 365, 629 S.E.2d 152 (2006), review denied, 362 N.C. 472 642 S.E.2d 442 (2007).

Commitment Held Improper - Trial court erred by denying a juvenile's release while his appeal was pending in part because he refused to admit committing the offenses for which he was adjudicated delinquent, as compelling such an admission to win release violated the juvenile's self-incrimination privilege under the state and federal constitutions. In re Lineberry, 154 N.C. App. 246, 572 S.E.2d 229 (2002).

Emergency Commitment Held Improper. - Written order which merely stated that it was an "emergency commitment," without stating any supporting reasons or findings of fact, was not proper. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988), holding, however, that juvenile had not shown prejudice from such order.

Denial of juvenile defendant's motion for release pending appeal was not improper, given that defendant did not challenge the trial court's findings of fact supporting its reason for denying defendant's motion, which was that he committed first degree sex offenses with a child. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757 (2008).

Failure to State Reasons Why Juvenile Could Not Be Released Pending Appeal. - Under G.S. 7B-2605, defendant juvenile should have been released because the trial court failed to state any compelling reasons in writing why defendant could not be released pending his appeal. In re J.J., 216 N.C. App. 366, 717 S.E.2d 59 (2011).

Appellant, a juvenile, was entitled to a writ of certiorari reviewing a denial of the juvenile's request for release pending appeal because (1) G.S. 7B-2605 required a written statement of compelling findings to deny such a request, and (2) the findings made only said the juvenile was committed and release was improper. In re G.C., 230 N.C. App. 511, 750 S.E.2d 548 (2013).


§ 7B-2606. Disposition after appeal.

Upon the affirmation of the order of adjudication or disposition of the court by the Court of Appeals or by the Supreme Court in the event of an appeal, the court shall have authority to modify or alter the original order of adjudication or disposition as the court finds to be in the best interests of the juvenile to reflect any adjustment made by the juvenile or change in circumstances during the period of time the appeal was pending. If the modifying order is entered ex parte, the court shall give notice to interested parties to show cause within 10 days thereafter as to why the modifying order should be vacated or altered.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

CASE NOTES

No Trial Court Jurisdiction During Pendency of Appeal - Where defendant, a juvenile, appealed the adjudication order of the trial court, pursuant to G.S. 7B-2602, the orders of the trial court, entered after notice of appeal was filed, amending the adjudication order and entering a disposition order, were improper; the trial courts lacked jurisdiction under G.S. 7B-2605 and G.S. 7B-2606 to enter these orders during the pendency of appeal. In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003).

Applied in In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (2003); In re J.F., 237 N.C. App. 218, 766 S.E.2d 341 (2014).


ARTICLE 27. Authority over Parents of Juveniles Adjudicated Delinquent or Undisciplined.

Sec.

§ 7B-2700. Appearance in court.

The parent, guardian, or custodian of a juvenile under the jurisdiction of the juvenile court shall attend the hearings of which the parent, guardian, or custodian receives notice. The court may excuse the appearance of either or both parents or the guardian or custodian at a particular hearing or all hearings. Unless so excused, the willful failure of a parent, guardian, or custodian to attend a hearing of which the parent, guardian, or custodian has notice shall be grounds for contempt.

History

(1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

§ 7B-2701. Parental responsibility classes.

The court may order the parent, guardian, or custodian of a juvenile who has been adjudicated undisciplined or delinquent to attend parental responsibility classes if those classes are available in the judicial district in which the parent, guardian, or custodian resides.

History

(1998-202, s. 6.)

§ 7B-2702. Medical, surgical, psychiatric, or psychological evaluation or treatment of juvenile or parent.

  1. If the court orders medical, surgical, psychiatric, psychological, or other evaluation or treatment pursuant to G.S. 7B-2502, the court may order the parent or other responsible parties to pay the cost of the treatment or care ordered.
  2. 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 to be directly involved in the juvenile's evaluation or treatment, the court may order that person to participate in medical, psychiatric, psychological, or other evaluation or treatment of the juvenile. The cost of the evaluation or treatment shall be paid pursuant to G.S. 7B-2502.
  3. At the dispositional hearing or a subsequent hearing, the court may determine whether the best interests of the juvenile require that the parent undergo psychiatric, psychological, or other evaluation or treatment or counseling directed toward 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. If the court finds that the best interests of the juvenile require the parent undergo evaluation or treatment, it may order that person to comply with a plan of evaluation or treatment approved by the court or condition legal custody or physical placement of the juvenile with the parent upon that person's compliance with the plan of evaluation or treatment.
  4. In cases in which the court has ordered the parent of the juvenile to comply with or undergo evaluation or treatment, the court may order the parent to pay the cost of evaluation or 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 upon the parent's compliance with a plan of evaluation or treatment, the court may charge the cost of the evaluation or treatment to the county of the juvenile's residence if the court finds the parent is unable to pay the cost of the evaluation or treatment. In all other cases, if the court finds the parent is unable to pay the cost of the evaluation or treatment ordered pursuant to this subsection, the court may order the parent to receive evaluation or treatment currently available from the area mental health program that serves the parent's catchment area.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 19; 1983, c. 837, ss. 2, 3; 1985, c. 589, s. 5; c. 777, s. 1; 1985 (Reg. Sess., 1986), c. 863, s. 2; 1987, c. 598, s. 2; 1989, c. 218; c. 529, s. 7; 1991, c. 636, s. 19(a); 1995, c. 328, s. 2; 1995 (Reg. Sess., 1996), c. 609, ss. 3, 4; 1997-456, s. 1; 1997-516, s. 1A; 1998-202, s. 6; 1998-229, s. 6.)

§ 7B-2703. Compliance with orders of court.

  1. The court may order the parent, guardian, or custodian, to the extent that person is able to do so, to provide transportation for a juvenile to keep an appointment with a juvenile court counselor or to comply with other orders of the court.
  2. The court may order a parent, guardian, or custodian to cooperate with and assist the juvenile in complying with the terms and conditions of probation or other orders of the court.

History

(1998-202, s. 6; 2001-490, s. 2.30.)

§ 7B-2704. Payment of support or other expenses; assignment of insurance coverage.

At the dispositional hearing or a subsequent hearing, if the court finds that the parent is able to do so, the court may order the parent to:

  1. Pay a reasonable sum that will cover in whole or in part the support of the juvenile. 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;
  2. Pay a fee for probation supervision or residential facility costs;
  3. Assign private insurance coverage to cover medical costs while the juvenile is in secure detention, youth development center, or other out-of-home placement; and
  4. Pay appointed attorneys' fees.

All money paid by a parent pursuant to this section shall be paid into the office of the clerk of superior court.

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.

History

(1979, c. 815, s. 1; 1981, c. 469, s. 19; 1983, c. 837, ss. 2, 3; 1985, c. 589, s. 5; c. 777, s. 1; 1985 (Reg. Sess., 1986), c. 863, s. 2; 1987, c. 598, s. 2; 1989, c. 218; c. 529, s. 7; 1991, c. 636, s. 19(a); 1995, c. 328, s. 2; 1995 (Reg. Sess., 1996), c. 609, ss. 3, 4; 1997-456, s. 1; 1997-516, s. 1A; 1998-202, s. 6; 1998-229, s. 6; 2000-144, s. 24; 2001-95, s. 5.)

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

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).


§ 7B-2705. Employment discrimination unlawful.

No employer may discharge, demote, or deny a promotion or other benefit of employment to any employee because the employee complies with the provisions of this Article. The Commissioner of Labor shall enforce the provisions of this section according to Article 21 of Chapter 95 of the General Statutes, including the rules and regulations issued pursuant to that Article.

History

(1998-202, s. 6.)

§ 7B-2706. Contempt for failure to comply.

Upon motion of the juvenile court counselor or prosecutor or upon the court's own motion, the court may issue an order directing the parent, guardian, or custodian to appear and show cause why the parent, guardian, or custodian 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 Article.

History

(1998-202, s. 6; 2001-490, s. 2.31.)

ARTICLE 28. Interstate Compact on Juveniles.

Sec.

§§ 7B-2800 through 7B-2827: Repealed by Session Laws 2005-194, s. 2. See editor's note.

History

(G.S. 7B-2800: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2801: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2802: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2803: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2804: 1963, c. 910, s. 1; c. 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6; 2000-144, s. 25. G.S. 7B-2805: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6; 2000-144, s. 26. G.S. 7B-2806: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2807: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2808: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2809: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2810: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2811: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2812: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2813: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2814: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2815: 1963, c. 910, s. 1; 1965, c. 925, s. 1; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2816: 1963, c. 910, s. 2; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2817: 1963, c. 910, s. 3; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2818: 1963, c. 910, s. 4; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2819: 1963, c. 910, s. 5; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-282020: 1963, c. 910, s. 6; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2821: 1965, c. 925, s. 2; 1971, c. 1231, s. 2; 1977, c. 552; 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2822: 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2823: 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2824: 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2825: 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2826: 1979, c. 815, s. 1; 1998-202, s. 6. G.S. 7B-2827: 1979, c. 815, s. 1; 1998-202, s. 6.)

Cross References. - For compact with states that have adopted the Interstate Compact for Juveniles, see Article 40 of this Chapter, G.S. 7B-4000 et seq.

Editor's Note. - Session Laws 2005-194, which enacted Article 40 of Chapter 7B, in s. 2 provided for the repeal of Article 28 of Chapter 7B, only when all states as defined in the compact have adopted The Interstate Compact for Juveniles.

Session Laws 2005-194, s. 3, effective July 15, 2005, provided: "The Secretary of the Department of Juvenile Justice and Delinquency Prevention shall notify the Revisor of Statutes when The Interstate Compact for Juveniles becomes effective under the terms of the Compact. The Secretary of the Department of Juvenile Justice and Delinquency Prevention shall notify the Revisor of Statutes when The Interstate Compact for Juveniles has been adopted by all states, as defined in the Compact."

Session Laws 2005-194, s. 4, effective July 15, 2005, provided: "This act shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. The Department of Juvenile Justice and Delinquency Prevention shall implement the provisions of this act with funds that are otherwise appropriated or available to the Department."

Session Laws 2005-194, s. 5, effective July 15, 2005, provided: "Section 1 of this act becomes effective only when 35 states have adopted The Interstate Compact for Juveniles, as set forth in the Compact. Section 2 of this act becomes effective only when all states, as defined in the Compact, have adopted The Interstate Compact for Juveniles. The remainder of this act is effective when it becomes law."

On August 15, 2014, the Revisor of Statutes was notified by the Department of Public Safety, pursuant to Session Laws 2005-194, s. 3, that the State of Georgia, the last remaining state, had adopted The Interstate Compact for Juveniles. Therefore, pursuant to the terms of Session Laws 2005-194, s. 5, the repeal of this Article by s. 2 of that act is now effective.

Former G.S. 7B-2800 pertained to execution of compact. Former G.S. 7B-2801 pertained to findings and purposes. Former G.S. 7B-2802 pertained to existing rights and remedies. Former G.S. 7B-2803 pertained to definitions. Former G.S. 7B-2804 pertained to return of runaways. Former G.S. 7B-2805 pertained to return of escapees and absconders. Former G.S. 7B-2806 pertained to voluntary return procedure. Former G.S. 7B-2807 pertained to Cooperative supervision of probationers and parolees. Former G.S. 7B-2808 pertained to responsibility for costs. Former G.S. 7B-2809 pertained to detention practices. Former G.S. 7B-2810 pertained to supplementary agreements. Former G.S. 7B-2811 pertained to acceptance of federal and other aid. Former G.S. 7B-2812 pertained to compact administrators. Former G.S. 7B-2813 pertained to execution of compact. Former G.S. 7B-2814 pertained to renunciation. Former G.S. 7B-2815 pertained to severability. Former G.S. 7B-2816 pertained to authority of governor to designate compact administrator. Former G.S. 7B-2817 pertained to authority of compact administrator to enter into supplementary agreements. Former G.S. 7B-2818 pertained to discharging financial obligations imposed by compact or agreement. Former G.S. 7B-2819 pertained to enforcement of compact. Former G.S. 7B-2820 pertained additional procedure for returning runaways not precluded. Former G.S. 7B-2821 pertained to proceedings for return of runaways under G.S. 7B-2804 of compact; "juvenile" construed. Former G.S. 7B-2822 pertained to interstate parole and probation hearing procedures for juveniles. Former G.S. 7B-2823 pertained to hearing officers. Former G.S. 7B-2824 pertained to due process at parole or probation violation hearing. Former G.S. 7B-2825 pertained to effect of parole or probation violation hearing outside State. Former G.S. 7B-2826 pertained to amendment to interstate compact on juveniles concerning interstate rendition of juveniles alleged to be delinquent. Former G.S. 7B-2827 pertained to out-of-state confinement amendment.

Legal Periodicals. - For article, "Brain Science and the Theory of Juvenile Mens Rea," see 94 N.C.L. Rev. 539 (2016).

SUBCHAPTER 03. JUVENILE RECORDS.

ARTICLE 29. Records and Social Reports of Cases of Abuse, Neglect, and Dependency.

Sec.

§ 7B-2900. Definitions.

The definitions of G.S. 7B-101 and G.S. 7B-1501 apply to this Subchapter.

History

(1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

§ 7B-2901. Confidentiality of records.

  1. The clerk shall maintain a complete record of all juvenile cases filed in the clerk's office alleging abuse, neglect, or dependency. The records shall be withheld from public inspection and, except as provided in this subsection, may be examined only by order of the court. The record shall include the summons, petition, custody order, court order, written motions, the electronic or mechanical recording of the hearing, and other papers filed in the proceeding. The recording of the hearing shall be reduced to a written transcript only when notice of appeal has been timely given. After the time for appeal has expired with no appeal having been filed, the recording of the hearing may be erased or destroyed upon the written order of the court or in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources under G.S. 121-5(c).
    1. The person named in the petition as the juvenile;
    2. The guardian ad litem;
    3. The county department of social services; and
    4. The juvenile's parent, guardian, or custodian, or the attorney for the juvenile or the juvenile's parent, guardian, or custodian.
  2. The Director of the Department of Social Services shall maintain a record of the cases of juveniles under protective custody by the Department or under placement by the court, which shall include family background information; reports of social, medical, psychiatric, or psychological information concerning a juvenile or the juvenile's family; interviews with the juvenile's family; or other information which the court finds should be protected from public inspection in the best interests of the juvenile. The records maintained pursuant to this subsection may be examined only in the following circumstances:
    1. The juvenile's guardian ad litem or the juvenile, including a juvenile who has reached age 18 or been emancipated, is authorized to review the record and request all or part of the record unless prohibited by federal law. The department shall provide electronic or written copies of the requested information within a reasonable period of time.
    2. A district or superior court judge of this State presiding over a civil matter in which the department 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 subsection 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 may surrender the requested records to the court, for in camera review, if surrender is necessary to make the required determinations.
    3. A district or superior court judge of this State presiding over a criminal or delinquency matter shall conduct an in camera review before 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 (1) of this subsection.
    4. The department may disclose confidential information to a parent, guardian, custodian, or caretaker in accordance with G.S. 7B-700.
  3. In the case of a child victim, the court may order the sharing of information among such public agencies as the court deems necessary to reduce the trauma to the victim.
  4. The court's entire record of a proceeding involving consent for an abortion on an unemancipated minor under Article 1A, Part 2 of Chapter 90 of the General Statutes is not a matter of public record, shall be maintained separately from any juvenile record, shall be withheld from public inspection, and may be examined only by order of the court, by the unemancipated minor, or by the unemancipated minor's attorney or guardian ad litem.

The following persons may examine the juvenile's record maintained pursuant to this subsection and obtain copies of written parts of the record without an order of the court:

History

(1979, c. 815, s. 1; 1987, c. 297; 1994, Ex. Sess., c. 7, s. 1; 1995, c. 462, s. 4; c. 509, s. 5; 1997-459, s. 2; 1998-202, s. 6; 2001-208, s. 10; 2001-487, s. 101; 2009-311, s. 18; 2017-158, s. 23; 2021-100, s. 18.)

Effect of Amendments. - Session Laws 2009-311, s. 18, effective October 1, 2009, in subsection (b), substituted "in the following circumstances:" for "by order of the court except that the guardian ad litem, or juvenile, shall have the right to examine them." in the introductory language, and added subdivisions (b)(1) through (b)(4).

Session Laws 2017-158, s. 23, effective July 21, 2017, added "or in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources under G.S. 121-5(c)" at the end of the last sentence in subsection (a).

Session Laws 2021-100, s. 18, effective October 1, 2021, rewrote subdivision (b)(1).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 459.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Juvenile Has Right to Examine Department of Social Services Files and Mental Health Records. - Trial court abused its discretion by denying a juvenile the right to examine his records under G.S. 7B-2901(b) because G.S. 7B-2901(b) gave the juvenile the right to examine his county department of social services files and mental health records; the trial court deemed which portions of the juvenile's record were irrelevant or cumulative and ordered those portions sealed. In re J.L., 199 N.C. App. 605, 685 S.E.2d 11 (2009).

Cross-Examination of Defendant as to Prior Adjudications of Delinquency. - For purposes of impeachment, it is permissible to cross-examine a juvenile defendant with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would have constituted a conviction of crime. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

In a criminal case, the rule that when a defendant takes the stand he may be impeached by cross-examination with respect to previous convictions of crime applies to every defendant who takes the stand, regardless of his age at the time of his previous conviction. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

Motion to Continue Improperly Denied. - Trial court abused its discretion by denying a juvenile's motion to continue the disposition because the juvenile had a right under G.S. 7B-2901(b) to access additional records, and the trial court should have granted the motion to continue in order to give the juvenile an opportunity to gather evidence for his disposition hearing. In re J.L., 199 N.C. App. 605, 685 S.E.2d 11 (2009).

Cited in Jane Doe 1 v. Swannanoa Valley Youth Dev. Ctr., 163 N.C. App. 136, 592 S.E.2d 715 (2004).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this Chapter.

What Is Protected Under Section. - The investigations and records protected by the confidentiality provisions of former G.S. 7A-675 are those arising under the Juvenile Code. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).

The confidentiality provisions of former G.S. 7A-675 do not prohibit the identification in a collision report filed pursuant to G.S. 20-166.1(e) of a person under 18 years of age who was involved in the collision. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).


§ 7B-2902. Disclosure in child fatality or near fatality cases.

  1. The following definitions apply in this section:
    1. Child fatality. - The death of a child from suspected abuse, neglect, or maltreatment.
    2. Findings and information. - A written summary, as allowed by subsections (c) through (f) of this section, of actions taken or services rendered by a public agency following receipt of information that a child might be in need of protection. The written summary shall include any of the following information the agency is able to provide:
      1. The dates, outcomes, and results of any actions taken or services rendered.
      2. The results of any review by the State Child Fatality Prevention Team, a local child fatality prevention team, a local community child protection team, the Child Fatality Task Force, or any public agency.
      3. Confirmation of the receipt of all reports, accepted or not accepted by the county department of social services, for investigation of suspected child abuse, neglect, or maltreatment, including confirmation that investigations were conducted, the results of the investigations, a description of the conduct of the most recent investigation and the services rendered, and a statement of basis for the department's decision.
    3. Near fatality. - A case in which a physician determines that a child is in serious or critical condition as the result of sickness or injury caused by suspected abuse, neglect, or maltreatment.
    4. Public agency. - Any agency of State government or its subdivisions as defined in G.S. 132-1(a).
  2. Notwithstanding any other provision of law and subject to the provisions of subsections (c) through (f) of this section, a public agency shall disclose to the public, upon request, the findings and information related to a child fatality or near fatality if:
    1. A person is criminally charged with having caused the child fatality or near fatality; or
    2. The district attorney has certified that a person would be charged with having caused the child fatality or near fatality but for that person's prior death.
  3. Nothing herein shall be deemed to authorize access to the confidential records in the custody of a public agency, or the disclosure to the public of the substance or content of any psychiatric, psychological, or therapeutic evaluations or like materials or information pertaining to the child or the child's family unless directly related to the cause of the child fatality or near fatality, or the disclosure of information that would reveal the identities of persons who provided information related to the suspected abuse, neglect, or maltreatment of the child.
  4. Within five working days from the receipt of a request for findings and information related to a child fatality or near fatality, a public agency shall consult with the appropriate district attorney and provide the findings and information unless the agency has a reasonable belief that release of the information:
    1. Is not authorized by subsections (a) and (b) of this section;
    2. Is likely to cause mental or physical harm or danger to a minor child residing in the deceased or injured child's household;
    3. Is likely to jeopardize the State's ability to prosecute the defendant;
    4. Is likely to jeopardize the defendant's right to a fair trial;
    5. Is likely to undermine an ongoing or future criminal investigation; or
    6. Is not authorized by federal law and regulations.
  5. Any person whose request is denied may apply to the appropriate superior court for an order compelling disclosure of the findings and information of the public agency. The application shall set forth, with reasonable particularity, factors supporting the application. The superior court shall have jurisdiction to issue such orders. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in such actions shall be accorded priority by the appellate courts. After the court has reviewed the specific findings and information, in camera, the court shall issue an order compelling disclosure unless the court finds that one or more of the circumstances in subsection (d) of this section exist.
  6. Access to criminal investigative reports and criminal intelligence information of public law enforcement agencies and confidential information in the possession of the State Child Fatality Prevention Team, the local teams, and the Child Fatality Task Force, shall be governed by G.S. 132-1.4 and G.S. 7B-1413 respectively. Nothing herein shall be deemed to require the disclosure or release of any information in the possession of a district attorney.
  7. Any public agency or its employees acting in good faith in disclosing or declining to disclose information pursuant to this section shall be immune from any criminal or civil liability that might otherwise be incurred or imposed for such action.
  8. Nothing herein shall be deemed to narrow or limit the definition of "public records" as set forth in G.S. 132-1(a).

History

(1997-459, s. 1; 1998-202, s. 6.)

ARTICLE 30. Juvenile Records and Social Reports of Delinquency and Undisciplined Cases.

Sec.

§ 7B-3000. Juvenile court records.

  1. The clerk shall maintain a complete record of all juvenile cases filed in the clerk's office to be known as the juvenile record. The record shall include the summons and petition, any secure or nonsecure custody order, any electronic or mechanical recording of hearings, and any written motions, orders, or papers filed in the proceeding.
  2. All juvenile records shall be withheld from public inspection and, except as provided in this subsection, may be examined only by order of the court. Except as provided in subsection (c) of this section, the following persons may examine the juvenile's record and obtain copies of written parts of the record without an order of the court:
    1. The juvenile or the juvenile's attorney;
    2. The juvenile's parent, guardian, or custodian, or the authorized representative of the juvenile's parent, guardian, or custodian;
    3. The prosecutor;
    4. Court counselors; and
    5. Probation officers in the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, as provided in subsection (e1) of this section and in G.S. 15A-1341(e).
  3. The court may direct the clerk to "seal" any portion of a juvenile's record. The clerk shall secure any sealed portion of a juvenile's record in an envelope clearly marked "SEALED: MAY BE EXAMINED ONLY BY ORDER OF THE COURT", or with similar notice, and shall permit examination or copying of sealed portions of a juvenile's record only pursuant to a court order specifically authorizing inspection or copying.
  4. Any portion of a juvenile's record consisting of an electronic or mechanical recording of a hearing shall be transcribed only when notice of appeal has been timely given and shall be copied electronically or mechanically, only by order of the court. After the time for appeal has expired with no appeal having been filed, the court may enter a written order directing the clerk to destroy the recording of the hearing, or the recording may be destroyed in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources under G.S. 121-5(c).
  5. Notwithstanding any other provision of law, if the defendant in a criminal proceeding involving a Class A1 misdemeanor or a felony was less than 21 years of age at the time of the offense, information obtained pursuant to subsection (b) of this section regarding the juvenile's record of an adjudication of delinquency for an offense that would be a Class A1 misdemeanor or a felony if committed by an adult, where the adjudication occurred after the defendant reached 13 years of age, may be used by law enforcement, the magistrate, the courts, and the prosecutor for pretrial release, plea negotiating decisions, and plea acceptance decisions. Information obtained regarding any juvenile record shall remain confidential and shall not be placed in any public record.
  6. When a person is subject to probation supervision under Article 82 of Chapter 15A of the General Statutes, for an offense that was committed while the person was less than 25 years of age, that person's juvenile record of an adjudication of delinquency for an offense that would be a felony if committed by an adult may be examined without a court order by the probation officer in the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice assigned to supervise the person for the purpose of assessing risk related to supervision.
  7. The juvenile's record of an adjudication of delinquency for an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult may be used in a subsequent criminal proceeding against the juvenile either under G.S. 8C-1, Rule 404(b), or to prove an aggravating factor at sentencing under G.S. 15A-1340.4(a), 15A-1340.16(d), or 15A-2000(e). The record may be so used only by order of the court in the subsequent criminal proceeding, upon motion of the prosecutor, after an in camera hearing to determine whether the record in question is admissible.
  8. Except as provided in subsection (d) of this section, a juvenile's record shall be destroyed only as authorized by G.S. 7B-3200 or by rules adopted by the Administrative Office of the Courts.

Except as provided in subsection (c) of this section, the prosecutor may, in the prosecutor's discretion, share information obtained from a juvenile's record with magistrates and law enforcement officers sworn in this State, but may not allow a magistrate or law enforcement officer to photocopy any part of the record. A prosecutor shall share information with a victim only as provided in Article 20A of this Chapter and shall not allow a victim to examine or photocopy any part of the record.

Each judicial district manager in the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall designate a staff person in each county to obtain from the clerk, at the request of the probation officer assigned to supervise the person, any juvenile records authorized to be examined under this subsection. The judicial district manager shall inform the clerk in each county, in writing, of the designated staff person in the county. The designated staff person shall transfer any juvenile records obtained to the probation officer assigned to supervise the person.

Any copies of juvenile records obtained pursuant to this subsection shall continue to be withheld from public inspection and shall not become part of the public record in any criminal proceeding. Any copies of juvenile records shall be destroyed within 30 days of termination of the person's period of probation supervision. Any other information in the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice records, relating to a person's juvenile record, shall remain confidential and shall be maintained or destroyed pursuant to guidelines established by the Department of Natural and Cultural Resources for the maintenance and destruction of Section of Community Corrections of the Division of Adult Correction and Juvenile Justice records.

History

(1979, c. 815, s. 1; 1987, c. 297; 1994, Ex. Sess., c. 7, s. 1; 1995, c. 462, s. 4; c. 509, s. 5; 1997-459, s. 2; 1998-202, s. 6; 2000-137, s. 3; 2002-159, s. 26; 2009-372, s. 1; 2009-545, s. 2; 2011-145, s. 19.1(h), (k); 2011-277, s. 1; 2012-83, s. 17; 2015-241, s. 14.30(s); 2017-158, s. 24; 2017-186, s. 2(m); 2019-216, s. 12.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Session Laws 2009-372, s. 19 is a severability clause.

Session Laws 2009-372, s. 20, provides in part, that the amendment to this section by Session Laws 2009-372, s. 1, which added subdivision (b)(5) and subsection (e1), is effective December 1, 2009, and applies to juvenile records of adjudication of delinquency for offenders placed on probation for offenses committed on or after that date. However, the juvenile records of adjudication of delinquency, which subsection (e1) authorizes the probation officer to access, may include adjudications of delinquency that occurred before December 1, 2009.

Session Laws 2009-545, s. 5, made amendments to subsection (e) by that act effective December 1, 2009, and applicable to offenses committed on or after that date. The remaining amendments by Session Laws 2009-545, s. 2, are effective December 1, 2009.

Session Laws 2011-277, s. 1, which, in the first sentence of subsection (e), deleted "the adjudication occurred 18 months or less before the defendant reached 16 years of age or" following "where" and substituted "13 years of age" for "16 years of age," was applicable to pretrial release, plea negotiating decisions, and plea acceptance decisions on or after December 1, 2011.

Session Laws 2019-216, s. 17, made the last sentence in subsection (b) as added by Session Laws 2019-216, s. 12, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

Effect of Amendments. - Session Laws 2009-372, s. 1, effective December 1, 2009, in subdivision (b)(3), deleted "and" from the end; in subdivision (b)(4), added "; and" at the end; added subdivision (b)(5); and added subsection (e1). For applicability, see Editor's note.

Session Laws 2009-545, s. 2, effective December 1, 2009, added "or the juvenile's attorney" at the end of subdivision (b)(1); inserted "magistrates and" and "magistrate or" in the last paragraph of subsection (b); and rewrote subsection (e). For applicability, see Editor's note.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted "Division of Adult Correction of the Department of Public Safety" for "Department of Correction."

Session Laws 2011-145, s. 19.1(k), effective January 1, 2012, substituted "Section of Community Corrections of the Division of Adult Correction" for "Division of Community Corrections."

Session Laws 2011-277, s. 1, effective December 1, 2011, and applicable to pretrial release, plea negotiating decisions, and plea acceptance decisions on or after that date, in the first sentence of subsection (e), deleted "the adjudication occurred 18 months or less before the defendant reached 16 years of age or" following "where" and substituted "13 years of age" for "16 years of age."

Session Laws 2012-83, s. 17, effective June 26, 2012, deleted "Division" preceding "staff person" in first paragraph following subsection (e1).

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted "Department of Natural and Cultural Resources" for "Department of Cultural Resources" in the last paragraph of subsection (e1).

Session Laws 2017-158, s. 24, effective July 21, 2017, added "or the recording may be destroyed in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources under G.S.121-5(c)" at the end of the second sentence in subsection (d).

Session Laws 2017-186, s. 2(m), effective December 1, 2017, inserted "and Juvenile Justice" throughout the section.

Session Laws 2019-216, s. 12, effective August 31, 2019, added the last sentence to subsection (b). For effective date and applicability, see editor's note.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 459.

CASE NOTES

Cross-Examination of Defendant as to Prior Adjudications of Delinquency. - For purposes of impeachment, it is permissible to cross-examine a juvenile defendant with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would have constituted a conviction of crime. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

In a criminal case, the rule that when a defendant takes the stand he may be impeached by cross-examination with respect to previous convictions of crime applies to every defendant who takes the stand, regardless of his age at the time of his previous conviction. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

Cited in Jane Doe 1 v. Swannanoa Valley Youth Dev. Ctr., 163 N.C. App. 136, 592 S.E.2d 715 (2004).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this Chapter.

What Is Protected Under Section. - The investigations and records protected by the confidentiality provisions of former G.S. 7A-675 are those arising under the Juvenile Code. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).

The confidentiality provisions of former G.S. 7A-675 do not prohibit the identification in a collision report filed pursuant to G.S. 20-166.1(e) of a person under 18 years of age who was involved in the collision. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).


§ 7B-3001. Other records relating to juveniles.

  1. The chief court counselor shall maintain a record of all cases of juveniles under supervision of juvenile court counselors, to be known as the juvenile court counselor's record. The juvenile court counselor's record shall include the juvenile's delinquency record; consultations with law enforcement that did not result in the filing of a complaint; family background information; reports of social, medical, psychiatric, or psychological information concerning a juvenile or the juvenile's family; probation reports; interviews with the juvenile's family; the results of the gang assessment; or other information the court finds should be protected from public inspection in the best interests of the juvenile.
  2. To assist at the time of investigation of an incident that could result in the filing of a complaint, upon request, a juvenile court counselor shall share with a law enforcement officer sworn in this State information from the juvenile court counselor's record related to a juvenile's delinquency record or prior consultations with law enforcement. A law enforcement officer may not obtain copies of any part of the record, and all information shared pursuant to this subsection shall be withheld from public inspection as provided in subsection (b) of this section.
  3. Unless jurisdiction of the juvenile has been transferred to superior court, all law enforcement records and files concerning a juvenile shall be kept separate from the records and files of adults and shall be withheld from public inspection. The following persons may examine and obtain copies of law enforcement records and files concerning a juvenile without an order of the court:
    1. The juvenile or the juvenile's attorney;
    2. The juvenile's parent, guardian, custodian, or the authorized representative of the juvenile's parent, guardian, or custodian;
    3. The prosecutor;
    4. Juvenile court counselors; and
    5. Law enforcement officers sworn in this State.
  4. All records and files maintained by the Division pursuant to this Chapter shall be withheld from public inspection. The following persons may examine and obtain copies of the Division records and files concerning a juvenile without an order of the court:
    1. The juvenile and the juvenile's attorney;
    2. The juvenile's parent, guardian, custodian, or the authorized representative of the juvenile's parent, guardian, or custodian;
    3. Professionals in the agency who are directly involved in the juvenile's case; and
    4. Juvenile court counselors.
  5. When the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety is authorized to access a juvenile record pursuant to G.S. 7B-3000(e1), the Division may, at the request of the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice, notify the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice that there is a juvenile record of an adjudication of delinquency for an offense that would be a felony if committed by an adult for a person subject to probation supervision under Article 82 of Chapter 15A of the General Statutes and may notify the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice of the county or counties where the adjudication of delinquency occurred.

Otherwise, the records and files may be examined or copied only by order of the court.

Otherwise, the records and files may be examined or copied only by order of the court. The court may inspect and order the release of records maintained by the Division.

History

(1979, c. 815, s. 1; 1987, c. 297; 1994, Ex. Sess., c. 7, s. 1; 1995, c. 462, s. 4; c. 509, s. 5; 1997-459, s. 2; 1998-202, s. 6; 2000-137, s. 3; 2001-490, s. 2.32; 2009-372, s. 2; 2009-545, s. 3; 2011-145, s. 19.1(h), (k), ( l ); 2017-57, s. 16D.4(x), (ii); 2017-186, s. 2(n); 2017-197, s. 5.4; 2018-142, s. 23(b).)

Editor's Note. - Session Laws 2017-57, s. 16D.4(jj), as amended by Session Laws 2017-197, s. 5.4, made the amendment to this section by Acts 2017-57, s. 16D.4(ii), effective December 1, 2019, and applicable to offenses committed on or after that date. Session Laws 2017-57, s. 16D.4(ii), added "the results of the gang assessment” in the second sentence of subsection (a).

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4(x), added "the juvenile's delinquency record; consultations with law enforcement that did not result in the filing of a complaint;” in the second sentence of subsection (a), and added subsection (a1).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2009-372, s. 2, effective December 1, 2009, and applicable to offenses committed on or after that date, added subsection (d).

Session Laws 2009-545, s. 3, effective December 1, 2009, inserted "or the juvenile's attorney" at the end of subdivision (b)(1); and substituted "The prosecutor" for "The district attorney or prosecutor" in subdivision (b)(3).

Session Laws 2011-145, s. 19.1(h), (k), and 19.1( l ), effective January 1, 2012, substituted "Division of Adult Correction of the Department of Public Safety" for "Department of Correction," "Section of Community Corrections of the Division of Adult Correction" for "Division of Community Corrections," and "Division" for "Department."

Session Laws 2017-57, s. 16D.4(x), added "the juvenile's delinquency record; consultations with law enforcement that did not result in the filing of a complaint;" in the second sentence of subsection (a), and added subsection (a1). For effective date and applicability, see editor's note.

Session Laws 2017-57, s. 16D.4(ii), added "the results of the gang assessment" in the second sentence of subsection (a). For effective date and applicability, see editor's note.

Session Laws 2017-186, s. 2(n), effective December 1, 2017, inserted "and Juvenile Justice" throughout subsection (d).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 459.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Cross-Examination of Defendant as to Prior Adjudications of Delinquency. - For purposes of impeachment, it is permissible to cross-examine a juvenile defendant with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would have constituted a conviction of crime. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

In a criminal case, the rule that when a defendant takes the stand he may be impeached by cross-examination with respect to previous convictions of crime applies to every defendant who takes the stand, regardless of his age at the time of his previous conviction. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

Cited in In re M.E.B., 153 N.C. App. 278, 569 S.E.2d 683 (2002); State v. McLaughlin, 246 N.C. App. 306, 786 S.E.2d 269 (2016).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this Chapter.

What Is Protected Under Section. - The investigations and records protected by the confidentiality provisions of former G.S. 7A-675 are those arising under the Juvenile Code. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).

The confidentiality provisions of former G.S. 7A-675 do not prohibit the identification in a collision report filed pursuant to G.S. 20-166.1(e) of a person under 18 years of age who was involved in the collision. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).


ARTICLE 31. Disclosure of Juvenile Information.

Sec.

§ 7B-3100. Disclosure of information about juveniles.

  1. The Division, after consultation with the Conference of Chief District Court Judges, shall adopt rules designating certain local agencies that are authorized to share information concerning juveniles in accordance with the provisions of this section. Agencies so designated shall share with one another, upon request and to the extent permitted by federal law and regulations, information that is in their possession that is relevant to any assessment of a report of child abuse, neglect, or dependency or the provision or arrangement of protective services in a child abuse, neglect, or dependency case by a local department of social services pursuant to the authority granted under Chapter 7B of the General Statutes or to any case in which a petition is filed alleging that a juvenile is abused, neglected, dependent, undisciplined, or delinquent and shall continue to do so until the protective services case is closed by the local department of social services, or if a petition is filed when the juvenile is no longer subject to the jurisdiction of juvenile court. Agencies that may be designated as "agencies authorized to share information" include local mental health facilities, local health departments, local departments of social services, local law enforcement agencies, local school administrative units, the district's district attorney's office, the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, and the Office of Guardian ad Litem Services of the Administrative Office of the Courts, and, pursuant to the provisions of G.S. 7B-3000(e1), the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. Any information shared among agencies pursuant to this section shall remain confidential, shall be withheld from public inspection, and shall be used only for the protection of the juvenile and others or to improve the educational opportunities of the juvenile, and shall be released in accordance with the provisions of the Family Educational and Privacy Rights Act as set forth in 20 U.S.C. § 1232g. Nothing in this section or any other provision of law shall preclude any other necessary sharing of information among agencies. Nothing herein shall be deemed to require the disclosure or release of any information in the possession of a district attorney.
  2. Disclosure of information concerning any juvenile under investigation or alleged to be within the jurisdiction of the court that would reveal the identity of that juvenile is prohibited except that publication of pictures of runaways is permitted with the permission of the parents and except as provided in Article 20A of this Chapter and G.S. 7B-3102.
  3. The juvenile's guardian ad litem attorney advocate appointed pursuant to G.S. 7B-601 may share confidential information about the juvenile with the juvenile's attorney appointed or retained pursuant to G.S. 7B-2000.

History

(1979, c. 815, s. 1; 1987, c. 297; 1994, Ex. Sess., c. 7, s. 1; 1995, c. 462, s. 4; c. 509, s. 5; 1997-459, s. 2; 1998-202, s. 6; 2000-137, s. 3; 2006-205, s. 2; 2007-458, s. 4; 2009-372, s. 3; 2011-145, s. 19.1(h), (k), ( l ); 2017-186, s. 2(o); 2019-33, s. 16; 2019-216, s. 13.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Session Laws 2019-216, s. 17, made the amendment to subsection (b) by Session Laws 2019-216, s. 13, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

Effect of Amendments. - Session Laws 2006-205, s. 2, effective August 8, 2006, in the second sentence of subsection (a), substituted "request and to the extent permitted by federal law and regulations" for "request," added the language "any assessment of a report ... Chapter 7B of the General Statutes or to" and "the protective services case is closed by the local department of social services, or if a petition is filed when."

Session Laws 2007-458, s. 4, effective October 1, 2007, inserted "and except as provided in G.S. 7B-3102" at the end of subsection (b).

Session Laws 2009-372, s. 3, effective December 1, 2009, and applicable to offenses committed on or after that date, added "and, pursuant to the provisions of G.S. 7B-3000(e1), the Division of Community Corrections of the Department of Correction" at the end of the third sentence in subsection (a).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted "Division of Adult Correction of the Department of Public Safety" for "Department of Correction."

Session Laws 2011-145, s. 19.1(k), effective January 1, 2012, substituted "Section of Community Corrections of the Division of Adult Correction" for "Division of Community Corrections."

Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division of Juvenile Justice of the Department of Public Safety" for "Department of Juvenile Justice and Delinquency Prevention," and "Division" for "Department."

Session Laws 2017-186, s. 2(o), effective December 1, 2017, in the third sentence of subsection (a), substituted "Juvenile Justice Section of the Division of Adult Correction and" for "Division of" and inserted "and Juvenile Justice".

Session Laws 2019-33, s. 16, effective October 1, 2019, added subsection (c).

Session Laws 2019-216, s. 17, effective August 29, 2019, inserted "Article 20A of this Chapter and" near the end of subsection (b). For effective date and applicability, see editor's note.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 459.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Cross-Examination of Defendant as to Prior Adjudications of Delinquency. - For purposes of impeachment, it is permissible to cross-examine a juvenile defendant with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would have constituted a conviction of crime. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

In a criminal case, the rule that when a defendant takes the stand he may be impeached by cross-examination with respect to previous convictions of crime applies to every defendant who takes the stand, regardless of his age at the time of his previous conviction. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

Cited in In re M.E.B., 153 N.C. App. 278, 569 S.E.2d 683 (2002).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this Chapter.

What Is Protected Under Section. - The investigations and records protected by the confidentiality provisions of former G.S. 7A-675 are those arising under the Juvenile Code. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).

The confidentiality provisions of former G.S. 7A-675 do not prohibit the identification in a collision report filed pursuant to G.S. 20-166.1(e) of a person under 18 years of age who was involved in the collision. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).


§ 7B-3101. Notification of schools when juveniles are alleged or found to be delinquent.

  1. Notwithstanding G.S. 7B-3000, the juvenile court counselor shall deliver verbal and written notification of any of the following actions to the principal of the school that the juvenile attends:
    1. A petition is filed under G.S. 7B-1802 that alleges delinquency for an offense that would be a felony if committed by an adult.
    2. The court transfers jurisdiction over a juvenile to the superior court under G.S. 7B-2200.5 or G.S. 7B-2200.
    3. The court dismisses under G.S. 7B-2411 the petition that alleges delinquency for an offense that would be a felony if committed by an adult.
    4. The court issues a dispositional order under Article 25 of Chapter 7B of the General Statutes including, but not limited to, an order of probation that requires school attendance, concerning a juvenile alleged or found delinquent for an offense that would be a felony if committed by an adult.
    5. The court modifies or vacates any order or disposition under G.S. 7B-2600 concerning a juvenile alleged or found delinquent for an offense that would be a felony if committed by an adult.
  2. If the principal of the school the juvenile attends returns any notification as required by G.S. 115C-404, and if the juvenile court counselor learns that the juvenile is transferring to another school, the juvenile court counselor shall deliver the notification to the principal of the school to which the juvenile is transferring. Delivery shall be made as soon as practicable and shall be made in person or by certified mail.
  3. Principals shall handle any notification delivered under this section in accordance with G.S. 115C-404.
  4. For the purpose of this section, "school" means any public or private school in the State that is authorized under Chapter 115C of the General Statutes.

Notification of the school principal in person or by telephone shall be made before the beginning of the next school day. Delivery shall be made as soon as practicable but at least within five days of the action. Delivery shall be made in person or by certified mail. Notification that a petition has been filed shall describe the nature of the offense. Notification of a dispositional order, a modified or vacated order, or a transfer to superior court shall describe the court's action and any applicable disposition requirements. As used in this subsection, the term "offense" does not include any offense under Chapter 20 of the General Statutes.

History

(1997-443, s. 8.29(e); 1998-202, s. 6; 2017-57, s. 16D.4( l ); 2018-142, s. 23(b); 2019-177, s. 2.)

Editor's Note. - The bracketed word "[the]" was inserted in subdivision (a)(2) at the direction of the Revisor of Statutes.

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: "Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions." Session Laws 2017-57, s. 16D.4( l ), inserted "G.S. 7B-2200.5 or” in subdivision (a) (2).

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 16D.4( l ), inserted "G.S. 7B-2200.5 or" in subdivision (a)(2). For effective date and applicability, see editor's note.

Session Laws 2019-177, s. 2, effective July 26, 2019, in subsection (a), inserted "any of" preceding "the following actions" in the introductory paragraph, inserted "the" preceding "Superior court" in subdivision (2), and substituted "does not include" for "shall not include" in the last paragraph.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 459.

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Cross-Examination of Defendant as to Prior Adjudications of Delinquency. - For purposes of impeachment, it is permissible to cross-examine a juvenile defendant with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would have constituted a conviction of crime. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

In a criminal case, the rule that when a defendant takes the stand he may be impeached by cross-examination with respect to previous convictions of crime applies to every defendant who takes the stand, regardless of his age at the time of his previous conviction. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-287.

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this Chapter.

What Is Protected Under Section. - The investigations and records protected by the confidentiality provisions of former G.S. 7A-765 are those arising under the Juvenile Code. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).

The confidentiality provisions of former G.S. 7A-675 do not prohibit the identification in a collision report filed pursuant to G.S. 20-166.1(e) of a person under 18 years of age who was involved in the collision. See opinion of Attorney General to Mr. Maurice A. Cawn, Police Attorney, City of Greensboro, 58 N.C.A.G. 33 (1988).


§ 7B-3102. Disclosure of information about juveniles who escape.

  1. Notwithstanding G.S. 7B-2102(d) or any other law to the contrary, within 24 hours of the time a juvenile escapes from custody the Division shall release to the public the juvenile's first name, last initial, and photograph; the name and location of the institution from which the juvenile escaped, or if the juvenile's escape was not from an institution, the circumstances and location of the escape; and if deemed appropriate a statement, based on the juvenile's record, of the level of concern of the Division as to the juvenile's threat to self or to others, if the juvenile escapes from a detention facility, secure custody, or a youth development center and the juvenile has been adjudicated delinquent. The determination of the level of threat posed by a juvenile who escapes from custody shall be made by the Deputy Commissioner of Juvenile Justice or the Deputy Commissioner's designee.
  2. When a juvenile escapes from a detention facility or secure custody, the Division may release to the public within 24 hours the juvenile's first name, last initial, and photograph; the name and location of the institution from which the juvenile escaped, or if the juvenile's escape was not from an institution, the circumstances and location of the escape; and a statement, based on the juvenile's record, of the level of concern of the Division as to the juvenile's threat to self or to others if both of the following apply:
    1. The juvenile is alleged to have committed an offense that would be a felony if committed by an adult.
    2. The Division determines, based on the juvenile's record, that the juvenile presents a danger to self or others.
  3. If a juvenile subject to subsection (a) or (b) of this section is returned to custody before the disclosure required or permitted is made, the Division shall not make the disclosure.
  4. The Division shall maintain a photograph of every juvenile in its custody.
  5. Before information is released to the public under this section, the Division shall make a reasonable effort to notify a parent, legal guardian, or custodian of the juvenile, and shall also make a reasonable effort to provide notification to the victim in accordance with G.S. 7B-2055.

History

(2007-458, s. 2; 2008-169, s. 1; 2011-145, s. 19.1( l ); 2015-41, s. 1; 2019-216, s. 14.)

Editor's Note. - Session Laws 2007-458, s. 5, made this section effective October 1, 2007.

Session Laws 2019-216, s. 17, made the amendment to subsection (e) by Session Laws 2019-216, s. 14, effective August 31, 2019, and applicable to offenses and acts of delinquency committed on or after that date.

Effect of Amendments. - Session Laws 2008-169, s. 1, effective October 1, 2008, rewrote the section.

Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" everywhere it appears.

Session Laws 2015-41, s. 1, effective May 29, 2015, in subsection (a), inserted "if deemed appropriate" in the first sentence, and added the last sentence.

Session Laws 2019-216, s. 14, effective August 31, 2019, added "and shall also make a reasonable effort to provide notification to the victim in accordance with G.S. 7B-2055" to the end of subsection (e). For effective date and applicability, see editor's note.

ARTICLE 32. Expunction of Juvenile Records.

Sec.

§ 7B-3200. Expunction of records of juveniles alleged or adjudicated delinquent and undisciplined.

  1. Any person who has attained the age of 18 years may file a petition in the court where the person was adjudicated undisciplined for expunction of all records of that adjudication.
  2. Any person who has attained the age of 18 years may file a petition in the court where the person was adjudicated delinquent for expunction of all records of that adjudication provided:
    1. The offense for which the person was adjudicated would have been a crime other than a Class A, B1, B2, C, D, or E felony if committed by an adult.
    2. The person has been released from juvenile court jurisdiction.
    3. At least 18 months have elapsed since the person was released from juvenile court jurisdiction, and the person has not subsequently been adjudicated delinquent or convicted as an adult of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state.
  3. The petition shall contain, but not be limited to, all of the following:
    1. An affidavit by the petitioner that includes all of the following statements:
      1. That the petitioner has been of good behavior since the adjudication.
      2. If the petition is based on a delinquency adjudication, that the petitioner has been released from juvenile court jurisdiction and has not subsequently been adjudicated delinquent or convicted as an adult of any felony or misdemeanor other than a traffic violation under the laws of the United States, or the laws of this State or any other state.
      3. If the petitioner is not subject to the requirements set forth in subdivision (2) of subsection (b) of this section, the affidavit shall state that the petitioner was adjudicated delinquent for an offense the petitioner participated in as a result of having been a victim of human trafficking as defined in G.S. 14-43.10 or a victim of a severe form of trafficking in persons as defined in the federal Trafficking Victims Protection Act, 22 U.S.C. § 7102.
    2. Verified affidavits of two persons, who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner's character and reputation are good.
    3. A statement that the petition is a motion in the cause in the case wherein the petitioner was adjudicated delinquent or undisciplined.
  4. If the court, after hearing, finds that the petitioner satisfies the conditions set out in subsections (a) or (b) of this section, the court shall order and direct the clerk and all law enforcement agencies to expunge their records of the adjudication including all references to arrests, complaints, referrals, petitions, and orders.
  5. The clerk shall forward a certified copy of the order to the sheriff, chief of police, or other law enforcement agency.
  6. Records of a juvenile adjudicated delinquent or undisciplined being maintained by the chief court counselor, an intake counselor, or a juvenile court counselor shall be retained or disposed of as provided by the Division, except that no records shall be destroyed before the juvenile reaches the age of 18 or 18 months have elapsed since the person was released from juvenile court jurisdiction, whichever occurs last.
  7. Records of a juvenile adjudicated delinquent or undisciplined being maintained by personnel at a residential facility operated by the Division, shall be retained or disposed of as provided by the Division, except that no records shall be destroyed before the juvenile reaches the age of 18 or 18 months have elapsed since the person was released from juvenile court jurisdiction, whichever occurs last.
  8. Any person who was alleged to be delinquent as a juvenile and has attained the age of 16 years, or was alleged to be undisciplined as a juvenile and has attained the age of 18 years, may file a petition in the court in which the person was alleged to be delinquent or undisciplined, for expunction of all juvenile records of the juvenile having been alleged to be delinquent or undisciplined if the court dismissed the juvenile petition without an adjudication that the juvenile was delinquent or undisciplined. The petition shall be served on the chief court counselor in the district where the juvenile petition was filed. The chief court counselor shall have 10 days thereafter in which to file a written objection in the court. If no objection is filed, the court may grant the petition without a hearing. If an objection is filed or the court so directs, a hearing shall be scheduled and the chief court counselor shall be notified as to the date of the hearing. If the court finds at the hearing that the petitioner satisfies the conditions specified herein, the court shall order the clerk and the appropriate law enforcement agencies to expunge their records of the allegations of delinquent or undisciplined acts including all references to arrests, complaints, referrals, juvenile petitions, and orders. The clerk shall forward a certified copy of the order of expunction to the sheriff, chief of police, or other appropriate law enforcement agency, and to the chief court counselor, and these specified officials shall immediately destroy all records relating to the allegations that the juvenile was delinquent or undisciplined.
  9. The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court in the clerk's county, file with the Administrative Office of the Courts, the names of those persons granted an expunction under the provisions of this section, and the Administrative Office of the Courts shall maintain a confidential file containing the names of persons granted an expunction. The information contained in such file shall be disclosed only to judges of the General Court of Justice of North Carolina for the purpose of ascertaining whether any person charged with an offense has been previously granted an expunction.

The requirements set forth in subdivision (2) of this subsection shall not apply to a person whose participation in the offense was a result of having been a victim of human trafficking as defined in G.S. 14-43.10 or a victim of a severe form of trafficking in persons as defined in the federal Trafficking Victims Protection Act, 22 U.S.C. § 7102.

Records relating to an adjudication for an offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult shall not be expunged.

The petition shall be served upon the district attorney in the district wherein adjudication occurred. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing on the petition.

History

(1979, c. 815, s. 1; 1989, c. 186; 1994, Ex. Sess., c. 7, s. 2; 1995, c. 509, s. 6; 1997-443, s. 11A.118(a); 1998-202, s. 6; 2000-137, s. 3; 2001-490, s. 2.33; 2011-145, s. 19.1( l ); 2019-158, s. 4(d).)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Session Laws 2019-158, s. 4(e), made the amendments to this section by Session Laws 2019-158, s. 4(d), effective December 1, 2019, and applicable to petitions filed on or after that date.

Session Laws 2019-158, s. 7 is a severability clause.

Effect of Amendments. - Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted "Division" for "Department" in subsections (f) and (g).

Session Laws 2019-158, s. 4(d), in subsection (b), added subdivision (1a) and the second paragraph; in the introductory paragraph of subsection (c), inserted "all of"; and rewrote subdivision (c)(1). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

For article, "Toward a Codification of the Law of Evidence in North Carolina," see 16 Wake Forest L. Rev. 669 (1980).

For article, "Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction," see 96 N.C.L. Rev. 573 (2018).

CASE NOTES

Cited in In re Spencer, 140 N.C. App. 776, 538 S.E.2d 236 (2000).


§ 7B-3201. Effect of expunction.

  1. Whenever a juvenile's record is expunged, with respect to the matter in which the record was expunged, the juvenile who is the subject of the record and the juvenile's parent may not be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge such record or response to any inquiry made of the person for any purpose.
  2. Notwithstanding subsection (a) of this section, in any delinquency case if the juvenile is the defendant and chooses to testify or if the juvenile is not the defendant and is called as a witness, the juvenile may be ordered to testify with respect to whether the juvenile was adjudicated delinquent.

History

(1979, c. 815, s. 1; 1983 (Reg. Sess., 1984), c. 1037, s. 7; 1998-202, s. 6.)

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

Cross-Examination About Prior Juvenile Proceedings. - Former G.S. 7A-677(b) is in line with the general rule that a defendant who takes the stand may be cross-examined for impeachment purposes about prior convictions. State v. Baker, 312 N.C. 34, 320 S.E.2d 670 (1984).

The prosecutor's tactic of reading from defendant's juvenile petitions while cross-examining defendant is not to be commended, but it does not constitute prejudicial error. When a prosecutor is acting on a good faith belief in the reliability of his information, he may press or "sift" the witness by further cross-examination when the witness denies that he committed the crimes or bad acts that are the subject of the cross-examination. State v. Baker, 312 N.C. 34, 320 S.E.2d 670 (1984).

A prosecutor may not, in cross-examining a defendant on collateral crimes, use questions which assume as facts unproved insinuations of the defendant's guilt of collateral offenses. However, prosecutor was not making insinuations of unproven facts where he based his questions concerning defendant's prior convictions on juvenile petitions from proceedings in which defendant had been found to be delinquent. State v. Baker, 312 N.C. 34, 320 S.E.2d 670 (1984).


§ 7B-3202. Notice of expunction.

Upon expunction of a juvenile's record, the clerk shall send a written notice to the juvenile at the juvenile's last known address informing the juvenile that the record has been expunged and with respect to the matter involved, the juvenile may not be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of the juvenile's failure to recite or acknowledge such record or response to any inquiry made of the juvenile for any purpose except that upon testifying in a delinquency proceeding, the juvenile may be required by a court to disclose that the juvenile was adjudicated delinquent.

History

(1979, c. 815, s. 1; 1983 (Reg. Sess., 1984), c. 1037, s. 8; 1998-202, s. 6.)

ARTICLE 33. Computation of Recidivism Rates.

§ 7B-3300: Repealed by Session Laws 2005-276, s. 14.19(c), effective July 1, 2005.

SUBCHAPTER 04. PARENTAL AUTHORITY; EMANCIPATION.

ARTICLE 34. Parental Authority over Juveniles.

Sec.

§ 7B-3400. Juvenile under 18 subject to parents' control.

Notwithstanding any other provision of law, any juvenile under 18 years of age, except as provided in G.S. 7B-3402 and G.S. 7B-3403, shall be subject to the supervision and control of the juvenile's parents.

History

(1969, c. 1080, s. 1; 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Legal Periodicals. - For article, "One Size Only Fits Some: Presuming Custody for the Involuntarily Committed,” see 97 N.C.L. Rev. 1014 (2019).

CASE NOTES

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Opinions of Attorney General

No Conflict with G.S. 90-21.5. - G.S. 7B-3400, which provides that minors are subject to the supervision and control of their parents "notwithstanding any other provision of law," does not abrogate or conflict with G.S. 90-21.5, which specifies the circumstances under which minors can consent to health services. See opinion of Attorney General to Dr. David King, Chairman, Rowan Board of Health, 1999 N.C. AG LEXIS 27, 38 (8/25/99).

§ 7B-3401. Definitions.

The definitions of G.S. 7B-101 and G.S. 7B-1501 apply to this Subchapter.

History

(1998-202, s. 6.)

§ 7B-3402. Exceptions.

This Article shall not apply to any juvenile under the age of 18 who is married or who is serving in the Armed Forces of the United States, or who has been emancipated.

History

(1969, c. 1080, s. 2; 1998-202, s. 6; 2011-183, s. 6.)

Effect of Amendments. - Session Laws 2011-183, s. 6, effective June 20, 2011, substituted "Armed Forces" for "armed forces."

§ 7B-3403. No criminal liability created.

This Article shall not be interpreted to place any criminal liability on a parent, guardian, or custodian for any act of the juvenile 16 years of age or older.

History

(1969, c. 1080, s. 3; 1998-202, s. 6.)

§ 7B-3404. Enforcement.

The provisions of this Article may be enforced by the parent, guardian, custodian, or person who has assumed the status and obligation of a parent without being awarded legal custody of the juvenile by a court to the juvenile by filing a civil action in the district court of the county where the juvenile can be found or the county of the plaintiff's residence. Upon the institution of such action by a verified complaint, alleging that the defendant juvenile has left home or has left the place where the juvenile has been residing and refuses to return and comply with the direction and control of the plaintiff, the court may issue an order directing the juvenile personally to appear before the court at a specified time to be heard in answer to the allegations of the plaintiff and to comply with further orders of the court. Such orders shall be served by the sheriff upon the juvenile and upon any other person named as a party defendant in such action. At the time of the issuance of the order directing the juvenile to appear, the court may in the same order, or by separate order, order the sheriff to enter any house, building, structure, or conveyance for the purpose of searching for the juvenile and serving the order and for the purpose of taking custody of the person of the juvenile in order to bring the juvenile before the court. Any order issued at said hearing shall be treated as a mandatory injunction and shall remain in full force and effect until the juvenile reaches the age of 18, or until further orders of the court. Within 30 days after the hearing on the original order, the juvenile, or anyone acting in the juvenile's behalf, may file a verified answer to the complaint. Upon the filing of an answer by or on behalf of the juvenile, any district court judge holding court in the county or district court district as defined in G.S. 7A-133 where the action was instituted shall have jurisdiction to hear the matter, without a jury, and to make findings of fact, conclusions of law, and render judgment thereon. Appeals from the district court to the Court of Appeals shall be allowed as in civil actions generally. The district court issuing the original order or the district court hearing the matter after answer has been filed shall also have authority to order that any person named defendant in the order or judgment shall not harbor, keep, or allow the defendant juvenile to remain on the person's premises or in the person's home. Failure of any defendant to comply with the terms of said order or judgment shall be punishable as for contempt.

History

(1969, c. 1080, s. 4; 1987 (Reg. Sess., 1988), c. 1037, s. 108; 1991 (Reg. Sess., 1992), c. 1031, s. 1; 1998-202, s. 6.)

ARTICLE 35. Emancipation.

Sec.

§ 7B-3500. Who may petition.

Any juvenile who is 16 years of age or older and who has resided in the same county in North Carolina or on federal territory within the boundaries of North Carolina for six months next preceding the filing of the petition may petition the court in that county for a judicial decree of emancipation.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

§ 7B-3501. Petition.

The petition shall be signed and verified by the petitioner and shall contain the following information:

  1. The full name of the petitioner and the petitioner's birth date, and state and county of birth;
  2. A certified copy of the petitioner's birth certificate;
  3. The name and last known address of the parent, guardian, or custodian;
  4. The petitioner's address and length of residence at that address;
  5. The petitioner's reasons for requesting emancipation; and
  6. The petitioner's plan for meeting the petitioner's needs and living expenses which plan may include a statement of employment and wages earned that is verified by the petitioner's employer.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

§ 7B-3502. Summons.

A copy of the filed petition along with a summons shall be served upon the petitioner's parent, guardian, or custodian who shall be named as respondents. The summons shall include the time and place of the hearing and shall notify the respondents to file written answer within 30 days after service of the summons and petition. In the event that personal service cannot be obtained, service shall be in accordance with G.S. 1A-1, Rule 4(j).

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

§ 7B-3503. Hearing.

The court, sitting without a jury, shall permit all parties to present evidence and to cross-examine witnesses. The petitioner has the burden of showing by a preponderance of the evidence that emancipation is in the petitioner's best interests. Upon finding that reasonable cause exists, the court may order the juvenile to be examined by a psychiatrist, a licensed clinical psychologist, a physician, or any other expert to evaluate the juvenile's mental or physical condition. The court may continue the hearing and order investigation by a juvenile court counselor or by the county department of social services to substantiate allegations of the petitioner or respondents.

No husband-wife or physician-patient privilege shall be grounds for excluding any evidence in the hearing.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2001-490, s. 2.34.)

§ 7B-3504. Considerations for emancipation.

In determining the best interests of the petitioner and the need for emancipation, the court shall review the following considerations:

  1. The parental need for the earnings of the petitioner;
  2. The petitioner's ability to function as an adult;
  3. The petitioner's need to contract as an adult or to marry;
  4. The employment status of the petitioner and the stability of the petitioner's living arrangements;
  5. The extent of family discord which may threaten reconciliation of the petitioner with the petitioner's family;
  6. The petitioner's rejection of parental supervision or support; and
  7. The quality of parental supervision or support.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

§ 7B-3505. Final decree of emancipation.

After reviewing the considerations for emancipation, the court may enter a decree of emancipation if the court determines:

  1. That all parties are properly before the court or were duly served and failed to appear and that time for filing an answer has expired;
  2. That the petitioner has shown a proper and lawful plan for adequately providing for the petitioner's needs and living expenses;
  3. That the petitioner is knowingly seeking emancipation and fully understands the ramifications of the act; and
  4. That emancipation is in the best interests of the petitioner.

The decree shall set out the court's findings.

If the court determines that the criteria in subdivisions (1) through (4) are not met, the court shall order the proceeding dismissed.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

§ 7B-3506. Costs of court.

The court may tax the costs of the proceeding to any party or may, for good cause, order the costs remitted.

The clerk may collect costs for furnishing to the petitioner a certificate of emancipation which shall recite the name of the petitioner and the fact of the petitioner's emancipation by court decree and shall have the seal of the clerk affixed thereon.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

§ 7B-3507. Legal effect of final decree.

As of entry of the final decree of emancipation:

  1. The petitioner has the same right to make contracts and conveyances, to sue and to be sued, and to transact business as if the petitioner were an adult.
  2. The parent, guardian, or custodian is relieved of all legal duties and obligations owed to the petitioner and is divested of all rights with respect to the petitioner.
  3. The decree is irrevocable.

Notwithstanding any other provision of this section, a decree of emancipation shall not alter the application of G.S. 14-326.1 or the petitioner's right to inherit property by intestate succession.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

§ 7B-3508. Appeals.

Any petitioner, parent, guardian, or custodian who is a party to a proceeding under this Article may appeal from any order of disposition to the Court of Appeals provided that notice of appeal is given in open court at the time of the hearing or in writing within 10 days after entry of the order. Entry of an order shall be treated in the same manner as entry of a judgment under G.S. 1A-1, Rule 58 of the North Carolina Rules of Civil Procedure. Pending disposition of an appeal, the court may enter a temporary order affecting the custody or placement of the petitioner as the court finds to be in the best interests of the petitioner or the State.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 1999-309, s. 3.)

§ 7B-3509. Application of common law.

A married juvenile is emancipated by this Article. All other common-law provisions for emancipation are superseded by this Article.

History

(1979, c. 815, s. 1; 1998-202, s. 6.)

CASE NOTES

Emancipation Decree Required. - In a question of first impression, the appellate court held that, when the child of divorced parents left the custodial parent's home to live on his own, but was not decreed by a court to be legally emancipated, the non-custodial parent's obligation to pay child support did not automatically terminate, because Article 35 of the Juvenile Code precluded the appellate court from accepting common law methods of emancipation for the purposes of terminating child support payments; thus, the father's child support obligations could not have automatically terminated absent a decree of emancipation. Morris v. Powell, - N.C. App. - , 840 S.E.2d 223 (2020).

Trial court did not err in not holding the father in contempt as he did not intend to willfully violate the child support order because he was under the mistaken apprehension that he could simply stop paying after his son ceased living with the mother. Morris v. Powell, - N.C. App. - , 840 S.E.2d 223 (2020).

ARTICLE 36. Judicial Consent for Emergency Surgical or Medical Treatment.

Sec.

§ 7B-3600. Judicial authorization of emergency treatment; procedure.

A juvenile in need of emergency treatment under Article 1A of Chapter 90 of the General Statutes, whose physician is barred from rendering necessary treatment by reason of parental refusal to consent to treatment, may receive treatment with court authorization under the following procedure:

  1. The physician shall sign a written statement setting out:
    1. The treatment to be rendered and the emergency need for treatment;
    2. The refusal of the parent, guardian, custodian, or person who has assumed the status and obligation of a parent without being awarded legal custody of the juvenile by a court to consent to the treatment; and
    3. The impossibility of contacting a second physician for a concurring opinion on the need for treatment in time to prevent immediate harm to the juvenile.
  2. Upon examining the physician's written statement prescribed in subdivision (1) of this section and finding:
    1. That the statement is in accordance with this Article, and
    2. That the proposed treatment is necessary to prevent immediate harm to the juvenile.
  3. In acute emergencies in which time may not permit implementation of the written procedure set out in subdivisions (1) and (2) of this section, the court may authorize treatment in person or by telephone upon receiving the oral statement of a physician satisfying the requirements of subdivision (1) of this section and upon finding that the proposed treatment is necessary to prevent immediate harm to the juvenile.
  4. The court's authorization for treatment overriding parental refusal to consent should not be given without attempting to offer the parent an opportunity to state the reasons for refusal; however, failure of the court to hear the parent's objections shall not invalidate judicial authorization under this Article.
  5. The court's authorization for treatment under subdivisions (1) and (2) of this section shall be issued in duplicate. One copy shall be given to the treating physician and the other copy shall be attached to the physician's written statement and filed as a juvenile proceeding in the office of the clerk of court.
  6. The court's authorization for treatment under subdivision (3) of this section shall be reduced to writing as soon as possible, supported by the physician's written statement as prescribed in subdivision (1) of this section and shall be filed as prescribed in subdivision (5) of this section.

The court may issue a written authorization for the proposed treatment to be rendered.

The court's authorization for treatment under this Article shall have the same effect as parental consent for treatment.

Following the court's authorization for treatment and after giving notice to the juvenile's parent, guardian, or custodian the court shall conduct a hearing in order to provide for payment for the treatment rendered. The court may order the parent or other responsible parties to pay the cost of treatment. If the court finds the parent is unable to pay the cost of treatment, the cost shall be a charge upon the county when so ordered.

This Article shall operate as a remedy in addition to the provisions in G.S. 7B-505.1 and G.S. 7B-903.1.

History

(1979, c. 815, s. 1; 1998-202, s. 6; 2017-161, s. 14.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

Effect of Amendments. - Session Laws 2017-161, s. 14, effective October 1, 2017, substituted "G.S. 7B-505.1 and G.S. 7B-903.1." for "G.S. 7B-903, 7B-2503, and 7B-2506." in the last paragraph.

SUBCHAPTER 05. PLACEMENT OF JUVENILES.

ARTICLE 37. Placing or Adoption of Juvenile Delinquents or Dependents.

Sec.

§ 7B-3700. Consent required for bringing child into State for placement or adoption.

  1. No person, agency, association, institution, or corporation shall bring or send into the State any child for the purpose of giving custody of the child to some person in the State or procuring adoption by some person in the State without first obtaining the written consent of the Department of Health and Human Services.
  2. The person with whom a child is placed for either of the purposes set out in subsection (a) of this section shall be responsible for the child's proper care and training. The Department of Health and Human Services or its agents shall have the same right of visitation and supervision of the child and the home in which it is placed as in the case of a child placed by the Department or its agents as long as the child shall remain within the State and until the child shall have reached the age of 18 years or shall have been legally adopted.

History

(1931, c. 226, s. 1; 1947, c. 609, s. 1; 1973, c. 476, s. 138; 1997-443, s. 11A.118(a); 1998-202, s. 6.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

§ 7B-3701. Bond required.

The Social Services Commission may, in its discretion, require of a person, agency, association, institution, or corporation which brings or sends a child into the State with the written consent of the Department of Health and Human Services, as provided by G.S. 7B-3700, a continuing bond in a penal sum not in excess of one thousand dollars ($1,000) with such conditions as may be prescribed and such sureties as may be approved by the Department of Health and Human Services. Said bond shall be made in favor of and filed with the Department of Health and Human Services with the premium prepaid by the said person, agency, association, institution, or corporation desiring to place such child in the State.

History

(1931, c. 226, s. 2; 1947, c. 609, s. 2; 1969, c. 982; 1973, c. 476, s. 138; 1997-443, s. 11A.118(a); 1998-202, s. 6.)

§ 7B-3702. Consent required for removing child from State.

No child shall be taken or sent out of the State for the purpose of placing the child in a foster home or in a child-caring institution without first obtaining the written consent of the Department of Health and Human Services. The foster home or child-caring institution in which the child is placed shall report to the Department of Health and Human Services at such times as the Department of Health and Human Services may direct as to the location and well-being of such child until the child shall have reached the age of 18 years or shall have been legally adopted.

History

(1931, c. 226, s. 3; 1947, c. 609, s. 3; 1973, c. 476, s. 138; 1997-443, s. 11A.118(a); 1998-202, s. 6.)

§ 7B-3703. Violation of Article a misdemeanor.

Every person acting for himself or for an agency who violates any of the provisions of this Article or who shall intentionally make any false statements to the Social Services Commission or the Secretary or an employee thereof acting for the Department of Health and Human Services in an official capacity in the placing or adoption of juvenile delinquents or dependents shall, upon conviction thereof, be guilty of a Class 2 misdemeanor.

History

(1931, c. 226, s. 7; 1957, c. 100, s. 1; 1973, c. 476, s. 138; 1993, c. 539, s. 823; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.118(a); 1998-202, s. 6.)

§ 7B-3704. Definitions.

The term "Department" wherever used in this Article shall be construed to mean the Department of Health and Human Services. The term "Secretary" wherever used in this Article shall be construed to mean the Secretary of the Department of Health and Human Services.

History

(1931, c. 226, s. 8; 1957, c. 100, s. 1; 1973, c. 476, s. 138; 1997-443, s. 11A.118(a); 1998-202, s. 6.)

§ 7B-3705. Application of Article.

None of the provisions of this Article shall apply when a child is brought into or sent into, or taken out of, or sent out of the State, by the guardian of the person of such child, or by a parent, stepparent, grandparent, uncle or aunt of such child, or by a brother, sister, half brother, or half sister of such child, if such brother, sister, half brother, or half sister is 18 years of age or older.

History

(1947, c. 609, s. 5; 1971, c. 1231, s. 1; 1998-202, s. 6.)

ARTICLE 38. Interstate Compact on the Placement of Children.

Sec.

§ 7B-3800. Adoption of Compact.

The Interstate Compact on the Placement of Children is hereby enacted into law and entered into with all other jurisdictions legally joining therein in a form substantially as contained in this Article. It is the intent of the General Assembly that Article 37 of this Chapter shall govern interstate placements of children between North Carolina and any other jurisdictions not a party to this Compact. It is the intent of the General Assembly that Chapter 48 of the General Statutes shall govern the adoption of children within the boundaries of North Carolina.

Article I. Purpose and Policy.

It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that:

  1. Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.
  2. The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.
  3. The proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.
  4. Appropriate jurisdictional arrangements for the care of children will be promoted.

Article II. Definitions.

As used in this Compact:

  1. "Child" means a person who, by reason of minority, is legally subject to parental, guardianship or similar control.
  2. "Sending agency" means a party state officer or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings, or causes to be sent or brought any child to another party state.
  3. "Receiving state" means the state to which a child is sent, brought, or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities of [or] for placement with private agencies or persons.
  4. "Placement" means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective, or epileptic or any institution primarily educational in character, and any hospital or other medical facility.
  5. "Appropriate public authorities" as used in Article III shall, with reference to this State, mean the Department of Health and Human Services and said agency shall receive and act with reference to notices required by Article III.
  6. "Appropriate authority in the receiving state" as used in paragraph (a) of Article V shall, with reference to this State, means the Secretary.
  7. "Executive head" as used in Article VII means the Governor.

Article III. Conditions for Placement.

  1. No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this Article and with the applicable laws of the receiving state governing the placement of children therein.
  2. Prior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state. The notice shall contain:
    1. The name, date, and place of birth of the child.
    2. The identity and address or addresses of the parents or legal guardian.
    3. The name and address of the person, agency or institution to or with which the sending agency proposes to send, bring, or place the child.
    4. A full statement of the reasons for such proposed action and evidence of the authority pursuant to which the placement is proposed to be made.
  3. Any public officer or agency in a receiving state which is in receipt of a notice pursuant to paragraph (b) of this Article may request of the sending agency, or any other appropriate officer or agency of or in the sending agency's state, and shall be entitled to receive therefrom, such supporting or additional information as it may deem necessary under the circumstances to carry out the purpose and policy of this Compact.
  4. The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.

Article IV. Penalty for Illegal Placement.

The sending, bringing, or causing to be sent or brought into any receiving state of a child in violation of the terms of this Compact shall constitute a violation of the laws respecting the placement of children of both the state in which the sending agency is located or from which it sends or brings the child and of the receiving state. Such violation may be punished or subjected to penalty in either jurisdiction in accordance with its laws. In addition to liability for any such punishment or penalty, any such violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.

Article V. Retention of Jurisdiction.

  1. The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency's state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law. The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement. Nothing contained herein shall defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein.
  2. When the sending agency is a public agency, it may enter into an agreement with an authorized public or private agency in the receiving state providing for the performance of one or more services in respect of such case by the latter as agent for the sending agency.
  3. Nothing in this Compact shall be construed to prevent a private charitable agency authorized to place children in the receiving state from performing services or acting as agent in that state for a private charitable agency of the sending state; nor to prevent the agency in the receiving state from discharging financial responsibility for the support and maintenance of a child who has been placed on behalf of the sending agency without relieving the responsibility set forth in paragraph (a) hereof.

Article VI. Institutional Care of Delinquent Children.

A child adjudicated delinquent may be placed in an institution in another party jurisdiction pursuant to this Compact, but no such placement shall be made unless the child is given a court hearing on notice to the parent or guardian with opportunity to be heard, prior to the child's being sent to such other party jurisdiction for institutional care and the court finds that:

  1. Equivalent facilities for the child are not available in the sending agency's jurisdiction; and
  2. Institutional care in the other jurisdiction is in the best interests of the child and will not produce undue hardship.

Article VII. Compact Administrator.

The executive head of each jurisdiction party to this Compact shall designate an officer who shall be general coordinator of activities under this Compact in the officer's jurisdiction and who, acting jointly with like officers of other party jurisdictions, shall have power to promulgate rules and regulations to carry out more effectively the terms and provisions of this Compact.

Article VIII. Limitations.

This Compact shall not apply to: (a) the sending or bringing of a child into a receiving state by the child's parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or the child's guardian and leaving the child with any such relative or nonagency guardian in the receiving state. (b) Any placement, sending or bringing of a child into a receiving state pursuant to any other interstate compact to which both the state from which the child is sent or brought and the receiving state are party, or to any other agreement between said states which has the force of law.

Article IX. Enactment and Withdrawal.

This Compact shall be open to joinder by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and, with the consent of Congress, the government of Canada or any province thereof. It shall become effective with respect to any such jurisdiction when such jurisdiction has enacted the same into law. Withdrawal from this Compact shall be by the enactment of a statute repealing the same, but shall not take effect until two years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the governor of each other party jurisdiction. Withdrawal of a party state shall not affect the rights, duties, and obligations under this Compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal.

Article X. Construction and Severability.

The provisions of this Compact shall be liberally construed to effectuate the purposes thereof. The provisions of this Compact shall be severable and if any phrase, clause, sentence, or provision of this Compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this Compact shall be held contrary to the constitution of any state party thereto, the Compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

History

(1971, c. 453, s. 1; 1973, c. 476, s. 138; 1983, c. 454, s. 8; 1997-443, s. 11A.118(a); 1998-202, s. 6; 1999-423, s. 3.)

Editor's Note. - Session Laws 1998-202, s. 37(b), made this Article effective July 1, 1999, and applicable to acts committed on or after that date.

Session Laws 1998-202, s. 36, contains a severability clause.

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Where custody of juveniles was granted to the biological mother, under the plain meaning of G.S. 7B-3800, the trial court was not obligated to follow the mandates of the Interstate Compact on the Placement of Children. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).

Placing Children with Grandparents Was Not Placement for Purposes of Compact. - Trial court's actions in finding that children were neglected and dependent and placing them in the guardianship of their maternal grandparents did not constitute placement mandating compliance with the Interstate Compact on the Placement of Children, G.S. 7B-3800, because it was not in foster care or as a preliminary to adoption. 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).

"Sending Agency" - Natural Parents. - Because defendants, a child's natural parents, were persons who sent the child to North Carolina for possible adoption by plaintiffs, they were the "sending agency" as that term is used in Article II(b) of the Compact, and as such, pursuant to Article V, they retained jurisdiction, that is, authority or control over the child until his adoption, including the power to effect or cause the return of the child to their home state and "to determine all matters in relation to the custody" of the child; therefore, the trial court properly determined that it had no jurisdiction over a custody proceeding brought by potential adoptive parents. Stancil v. Brock, 108 N.C. App. 745, 425 S.E.2d 446 (1993), decided prior to enactment of this Chapter.

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, 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).

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).

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).

Cited in In re Robinson, 132 N.C. App. 122, 510 S.E.2d 190 (1999).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered prior to the enactment of this Chapter.

Applicability When Child Is Sent Out of State. - The Interstate Compact on the Placement of Children applies when a North Carolina child is sent by a court, government agency, or child-placing agency to live with a parent, relative, or guardian in another party state. See opinion of Attorney General Dr. Sarah T. Morrow, Secretary, North Carolina Department of Human Resources, 52 N.C.A.G. 22 (1982).

§ 7B-3801. Financial responsibility under Compact.

Financial responsibility for any child placed pursuant to the provisions of the Interstate Compact on the Placement of Children shall be determined in accordance with the provisions of Article V thereof in the first instance. However, in the event of partial or complete default of performance thereunder, the provisions of any other state laws fixing responsibility for the support of children also may be invoked.

History

(1971, c. 453, s. 2; 1998-202, s. 6.)

§ 7B-3802. Agreements under Compact.

The officers and agencies of this State and its subdivisions having authority to place children are hereby empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to paragraph (b) of Article V of the Interstate Compact on the Placement of Children. Any such agreement which contains a financial commitment or imposes a financial obligation on this State or subdivision or agency thereof shall not be binding unless it has the approval in writing of the Secretary of the Department of Health and Human Services in the case of the State and of the county director of social services in the case of a county or other subdivision of the State.

History

(1971, c. 453, s. 2; 1973, c. 476, s. 138; 1997-443, s. 11A.118(a); 1998-202, s. 6.)

§ 7B-3803. Visitation, inspection or supervision.

Any requirements for visitation, inspection or supervision of children, homes, institutions or other agencies in another party state which may apply under the laws of this State shall be deemed to be met if performed pursuant to an agreement entered into by appropriate officers or agencies of this State or a subdivision thereof as contemplated by paragraph (b) of Article V of the Interstate Compact on the Placement of Children.

History

(1971, c. 453, s. 2; 1998-202, s. 6.)

§ 7B-3804. Compact to govern between party states.

The provisions of Article 37 of this Chapter shall not apply to placements made pursuant to the Interstate Compact on the Placement of Children.

History

(1971, c. 453, s. 2; 1998-202, s. 6.)

§ 7B-3805. Placement of delinquents.

Any court having jurisdiction to place delinquent children may place such a child in an institution or in another state pursuant to Article VI of the Interstate Compact on the Placement of Children and shall retain jurisdiction as provided in Article V thereof.

History

(1971, c. 453, s. 2; 1998-202, s. 6.)

§ 7B-3806. Compact Administrator.

The Governor is hereby authorized to appoint a Compact Administrator in accordance with the terms of said Article VII.

History

(1971, c. 453, s. 2; 1998-202, s. 6.)

§ 7B-3807:

History

(2019-172, s. 11.)

Editor's Note. - Session Laws 2019-172, s. 13, made this section effective October 1, 2019.

Section Repealed Effective October 1, 2021. - This section is repealed effective October 1, 2021, by Session Laws 2021-100, s. 19.

§ 7B-3808. Action for Interstate Compact administrator to forward a request.

The Interstate Compact on the Placement of Children office at the Department of Health and Human Services has the authority to request supporting or additional information necessary to carry out the purpose and policy of the compact and to require assurance that the placement meets all applicable North Carolina placement statutes. Any sending agency that intends to place a child into and out of North Carolina shall submit a complete request to the Interstate Compact on the Placement of Children office at the Department of Health and Human Services. To be considered a complete request, the submission must comply with the Interstate Compact on the Placement of Children regulations and include any supporting additional information that the Department of Health and Human Services or the receiving state deems necessary. Unless otherwise provided by the Interstate Compact on the Placement of Children regulations, when the Department of Health and Human Services receives an incomplete request, the Department of Health and Human Services shall provide either the sending agency in North Carolina or the receiving state with written notice of the specific information needed to process the request and shall allow the sending agency 10 business days from the date of the notice to submit the requested information. If after the expiration of the 10 business days the Interstate Compact on the Placement of Children office at the Department of Health and Human Services does not receive the requested information or the sending agency does not withdraw its request, the request shall be deemed expired.

History

(2019-172, s. 12.)

Editor's Note. - Session Laws 2019-172, s. 13, made this section effective October 1, 2019.

ARTICLE 39. Interstate Compact on Adoption and Medical Assistance.

Sec.

§ 7B-3900. Legislative findings and purposes.

  1. Finding adoptive families for children, for whom state assistance is desirable pursuant to G.S. 108A-49 and G.S. 108A-50, and assuring the protection of the interests of the children affected during the entire assistance period require special measures when the adoptive parents move to another state or are residents of another state. Additionally, the provision of medical and other necessary services for children receiving State assistance encounters special difficulties when the provision of services takes place in another state.
  2. In recognition of the need for special measures, the General Assembly authorizes the Secretary of the Department of Health and Human Services to enter into interstate agreements with agencies of other states for the protection of children on behalf of whom adoption assistance is being provided by the Department of Health and Human Services and to provide procedures for interstate adoption assistance payments, including payments for medical services.

History

(1999-190, s. 5.)

Legal Periodicals. - For article, "Preserving Your Right to Parent: The Supreme Court of North Carolina Addresses Unmarried Fathers' Due Process Rights in In Re Adoption of S.D.W.," see 94 N.C.L. Rev. 723 (2016).

§ 7B-3901. Definitions.

Unless the context requires otherwise, as used in this Article:

  1. "Adoption assistance state" means the state that is a signatory to an adoption assistance agreement in a particular case.
  2. "Residence state" means the state where the child is living.
  3. "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, or any territory or possession subject to the jurisdiction of the United States.

History

(1999-190, s. 5.)

Editor's Note. - The definitions in the section above have been set out in alphabetical order pursuant to direction from the Revisor of Statutes.

§ 7B-3902. Compacts authorized.

The Secretary of the Department of Health and Human Services may develop, participate in the development of, negotiate, and enter into one or more interstate compacts on behalf of this State with other states to implement this Article. When entered into, and for so long as it remains in force, such a compact shall have the full force and effect of law.

History

(1999-190, s. 5.)

§ 7B-3903. Content of compacts.

  1. A compact under this Article shall contain all of the following provisions:
    1. A provision making it available for joinder by all states.
    2. A provision for withdrawal from the compact upon written notice to the parties, with a period of at least one year between the date of the notice and effective date of the withdrawal.
    3. A requirement that the protections afforded by or under the compact continue in force for the duration of the adoption assistance and apply to all children and their adoptive parents who, on the effective date of the withdrawal, are receiving adoption assistance from a party state other than the state in which they are a resident and have their principal place of abode.
    4. A requirement that each instance of adoption assistance to which the compact applies be covered by an adoption assistance agreement in writing between the adoptive parents and the state child welfare agency of the state which undertakes to provide the adoption assistance and that any such agreement be expressly for the benefit of the adopted child and enforceable by the adoptive parents and the state child welfare agency providing the adoption assistance.
    5. Any other provisions appropriate to implement the proper administration of the compact.
  2. A compact entered into under this Article may contain any of the following provisions:
    1. Provisions establishing procedures and entitlement to medical and other necessary social services for the child in accordance with applicable laws, even though the child and the adoptive parents are in a state other than the one responsible for or providing the services or the funds to defray part or all of the expense thereof.
    2. Any other provisions appropriate or incidental to the proper administration of the compact.

History

(1999-190, s. 5.)

§ 7B-3904. Medical assistance.

  1. A child with special needs who is a resident of this State who is the subject of an adoption assistance agreement with another state shall be accepted as being entitled to receive medical assistance certification from this State upon the filing in the department of social services of the county in which the child resides a certified copy of the adoption assistance agreement obtained from the adoption assistance state.
  2. The Division of Health Benefits shall consider the holder of a medical assistance certification under this section to be entitled to the same medical benefits under the laws of this State as any other holder of a medical assistance certification and shall process and make payment on claims on account of that holder in the same manner and under the same conditions and procedures that apply to other recipients of medical assistance.
  3. The provisions of this section apply only to medical assistance for children under adoption assistance agreements from states that have entered into a compact with this State under which the other state provides medical assistance to children with special needs under adoption assistance agreements made by this State.

History

(1999-190, s. 5; 2019-81, s. 15(a).)

Effect of Amendments. - Session Laws 2019-81, s. 15(a), effective July 1, 2019, substituted "Division of Health Benefits" for "Division of Medical Assistance" in subsection (b).

§ 7B-3905. Federal participation.

The Department of Health and Human Services, in connection with the administration of this Article and any compact entered into pursuant to this Article, shall include the provision of adoption assistance and medical assistance for which the federal government pays some or all of the cost in any state plan made pursuant to the Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272), Titles IV (E) and XIX of the Social Security Act and any other applicable federal laws. The Department shall apply for and administer all relevant federal aid in accordance with law.

History

(1999-190, s. 5.)

§ 7B-3906. Compact Administrator.

The Secretary of the Department of Health and Human Services may appoint a Compact Administrator who shall be the general coordinator of activities under this Compact in this State and who, acting jointly with like officers of other party states, may promulgate rules to carry out more effectively the terms and provisions of this Compact.

History

(1999-190, s. 5.)

ARTICLE 40. Interstate Compact for Juveniles.

Sec.

Table of Comparable Sections for Chapters 7A and 7B Prepared by Legislative Services Office.

§ 7B-4000. Short title.

This Article may be cited as "The Interstate Compact for Juveniles".

History

(2005-194, s. 1.)

Cross References. - For compact with states that have not adopted this compact but adopted the Interstate Compact on Juveniles, see Article 28 of this Chapter, see G.S. 7B-2800 et seq.

Editor's Note. - Session Laws 2005-194, which enacted this Article, in s. 5, states in part, that this Article becomes effective only when 35 states have adopted The Interstate Compact for Juveniles, as set forth in the Compact. By letter dated September 29, 2008, the Secretary of Juvenile Justice and Delinquency Prevention notified the Revisor of Statutes that the Interstate Compact for Juveniles has become effective under the terms of the Compact because 35 states have now adopted it. Illinois became the 35th state when the Governor signed the legislation adopting the Compact in Illinois on August 26, 2008.

Session Laws 2005-194, s. 4, effective July 15, 2005, provided: "This act shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act. The Department of Juvenile Justice and Delinquency Prevention shall implement the provisions of this act with funds that are otherwise appropriated or available to the Department."

On August 15, 2014, the Revisor of Statutes was notified by the Department of Public Safety, pursuant to Session Laws 2005-194, s. 3, that the State of Georgia, the last remaining state, had adopted The Interstate Compact for Juveniles.

Legal Periodicals. - For article, "Brain Science and the Theory of Juvenile Mens Rea," see 94 N.C.L. Rev. 539 (2016).

§ 7B-4001. Governor to execute Compact; form of Compact.

The Governor of North Carolina is authorized and directed to execute a Compact on behalf of the State of North Carolina with any state of the United States legally joining therein in the form substantially as follows:

"Article I.

Purpose.

  1. The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents, and status offenders who are on probation or parole and who have absconded, escaped, or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. § 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention  of crime.
  2. It is the purpose of this Compact, through means of joint and cooperative action among the compacting states to:
    1. Ensure that the adjudicated juveniles and status offenders subject to this Compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state;
    2. Ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected;
    3. Return juveniles who have run away, absconded, or escaped from supervision or control, or have been accused of an offense to the state requesting their return;
    4. Make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services;
    5. Provide for the effective tracking and supervision of juveniles;
    6. Equitably allocate the costs, benefits, and obligations of the compacting states;
    7. Establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency which has jurisdiction over juvenile offenders;
    8. Ensure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines;
    9. Establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this Compact;
    10. Establish a system of uniform data collection on information pertaining to juveniles subject to this Compact that allows access by authorized juvenile justice and criminal justice officials and regular reporting of Compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators;
    11. Monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance;
    12. Coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and
    13. Coordinate the implementation and operation of the Compact with the Interstate Compact for the Placement of Children, the Interstate Compact for Adult Offender Supervision, and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise.
  3. It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this Compact. The provisions of this Compact shall be reasonably and liberally construed to accomplish the purposes and policies of the Compact.

Article II.

Definitions.

As used in this Compact, unless the context clearly requires a different construction:

  1. "Bylaws" means those bylaws established by the Interstate Commission for its governance or for directing or controlling its actions or conduct.
  2. "Compact Administrator" means the individual in each compacting state appointed pursuant to the terms of this Compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this Compact, the rules adopted by the Interstate Commission, and policies adopted by the State Council under this Compact.
  3. "Compacting State" means any state which has enacted the enabling legislation for this Compact.
  4. "Commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this Compact.
  5. "Court" means any court having jurisdiction over delinquent, neglected, or dependent children.
  6. "Deputy Compact Administrator" means the individual, if any, in each compacting state appointed to act on behalf of a Compact Administrator pursuant to the terms of this Compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission, and policies adopted by the State Council under this Compact.
  7. "Interstate Commission" means the Interstate Commission for Juveniles created by Article III of this Compact.
  8. "Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:
    1. Accused Delinquent. - A person charged with an offense that, if committed by an adult, would be a criminal offense;
    2. Adjudicated Delinquent. - A person found to have committed an offense that, if committed by an adult, would be a criminal offense;
    3. Accused Status Offender. - A person charged with an offense that would not be a criminal offense if committed by an adult;
    4. Adjudicated Status Offender. - A person found to have committed an offense that would not be a criminal offense if committed by an adult; and
    5. Nonoffender. - A person in need of supervision who has not been accused or adjudicated a status offender or delinquent.
  9. "Noncompacting State" means any state which has not enacted the enabling legislation for this Compact.
  10. "Probation" or "Parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.
  11. "Rule" means a written statement by the Interstate Commission promulgated pursuant to Article VI of this Compact that is of general applicability, implements, interprets, or prescribes a policy or provision of the Compact, or an organizational, procedural, or practice requirement of the Commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule.
  12. "State" means a state of the United States, the District of Columbia or its designee, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands.

Article III.

Interstate Commission for Juveniles.

  1. The compacting states hereby create the "Interstate Commission for Juveniles." The Commission shall be a body corporate and joint agency of the compacting states. The Commission shall have all the responsibilities, powers, and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this Compact.
  2. The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created hereunder. The Commissioner shall be the compact administrator, deputy compact administrator, or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state.
  3. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims. All noncommissioner members of the Interstate Commission shall be ex officio, nonvoting members. The Interstate Commission may provide in its bylaws for such additional ex officio, nonvoting members, including members of other national organizations, in such numbers as shall be determined by the Commission.
  4. Each compacting state represented at any meeting of the Commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.
  5. The Commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings, and meetings shall be open to the public.
  6. The Interstate Commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rule making and/or amendment to the Compact. The executive committee shall oversee the day-to-day activities of the administration of the Compact managed by an executive director and Interstate Commission staff, administer enforcement and compliance with the provisions of the Compact, its bylaws and rules, and perform other duties as directed by the Interstate Commission or set forth in the bylaws.
  7. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.
  8. The Interstate Commission's bylaws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
  9. Public notice shall be given of all meetings, and all meetings shall be open to the public, except as set forth in the Rules or as otherwise provided in the Compact. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:
    1. Relate solely to the Interstate Commission's internal personnel practices and procedures;
    2. Disclose matters specifically exempted from disclosure by statute;
    3. Disclose trade secrets or commercial or financial information which is privileged or confidential;
    4. Involve accusing any person of a crime or formally censuring any person;
    5. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. Disclose investigative records compiled for law enforcement purposes;
    7. Disclose information contained in or related to examination, operating, or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;
    8. Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or
    9. Specifically relate to the Interstate Commission's issuance of a subpoena or its participation in a civil action or other legal proceeding.
  10. For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in the minutes.
  11. The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection and data exchange, and reporting requirements. Such methods of data collection, exchange, and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.

Article IV.

Powers and Duties of the Interstate Commission.

  1. The Interstate Commission shall have the following powers and duties:
    1. To provide for dispute resolution among compacting states.
    2. To promulgate rules to effect the purposes and obligations as enumerated in this Compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this Compact.
    3. To oversee, supervise, and coordinate the interstate movement of juveniles subject to the terms of this Compact and any bylaws adopted and rules promulgated by the Interstate Commission.
    4. To enforce compliance with the Compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means including, but not limited to, the use of judicial process.
    5. To establish and maintain offices which shall be located within one or more of the compacting states.
    6. To purchase and maintain insurance and bonds.
    7. To borrow, accept, hire, or contract for services of personnel.
    8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III of this Compact, which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.
    9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel.
    10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of them.
    11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed.
    12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed.
    13. To establish a budget and make expenditures and levy dues as provided in Article VIII of this Compact.
    14. To sue and be sued.
    15. To adopt a seal and bylaws governing the management and operation of the Interstate Commission.
    16. To perform such functions as may be necessary or appropriate to achieve the purposes of this Compact.
    17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.
    18. To coordinate education, training, and public awareness regarding the interstate movement of juveniles for officials involved in such activity.
    19. To establish uniform standards of the reporting, collecting, and exchanging of data.
  2. The Interstate Commission shall maintain its corporate books and records in accordance with the bylaws.

Article V.

Organization and Operation of the Interstate Commission.

  1. Bylaws. - The Interstate Commission shall, by a majority of the members present and voting, within 12 months after the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the Compact, including, but not limited to:
    1. Establishing the fiscal year of the Interstate Commission;
    2. Establishing an executive committee and such other committees as may be necessary;
    3. Providing for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;
    4. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission and ensuring reasonable notice of each such meeting;
    5. Establishing the titles and responsibilities of the officers of the Interstate Commission;
    6. Providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the Compact after the payment and/or reserving of all of its debts and obligations;
    7. Providing "start-up" rules for initial administration of the Compact; and
    8. Establishing standards and procedures for compliance and technical assistance in carrying out the Compact.
  2. Officers and Staff. - The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice-chairperson, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice-chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
  3. Qualified Immunity, Defense, and Indemnification. - The Commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided, that any such person shall not be protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.

The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the Attorney General of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.

The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

Article VI.

Rule-Making Functions of the Interstate Commission.

  1. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the Compact.
  2. Rule making shall occur pursuant to the criteria set forth in this Article and the bylaws and rules adopted pursuant thereto. Such rule making shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol. 16, p. 1 (2000), or such other administrative procedures acts, as the Interstate Commission deems appropriate consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the Commission.
  3. When promulgating a rule, the Interstate Commission shall, at a minimum:
    1. Publish the proposed rule's entire text stating the reason for that proposed rule;
    2. Allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record and be made publicly available;
    3. Provide an opportunity for an informal hearing if petitioned by 10 or more persons;
    4. Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties; and
    5. Allow, not later than 60 days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of such rule.
  4. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rule-making record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.
  5. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the Compact, cause that rule to have no further force and effect in any compacting state.
  6. The existing rules governing the operation of the Interstate Compact on Juveniles superseded by this act shall be null and void when all states, as defined in the Compact, have adopted The Interstate Compact for Juveniles.
  7. Upon determination by the Interstate Commission that a state of emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rule-making procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible but no later than 90 days after the effective date of the emergency rule.

Article VII.

Oversight, Enforcement, and Dispute Resolution by the Interstate Commission.

  1. Oversight. - The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this Compact in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.
  2. Dispute Resolution. - The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the Compact as well as issues and activities pertaining to compliance with the provisions of the Compact and its bylaws and rules.

The courts and executive agencies in each compacting state shall enforce this Compact and shall take all actions necessary and appropriate to effectuate the Compact's purposes and intent. The provisions of this Compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules, and all courts shall take judicial notice of the Compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this Compact which may affect the powers, responsibilities, or actions of the Interstate Commission, it shall be entitled to receive all service of process in any such proceeding and shall have standing to intervene in the proceeding for all purposes.

The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the Compact and which may arise among compacting states and between compacting and noncompacting states. The Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this Compact using any or all means set forth in Article XI of this Compact.

Article VIII.

Finance.

  1. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
  2. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.
  3. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
  4. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

Article IX.

The State Council.

Each member state shall create a State Council for Interstate Juvenile Supervision. While each state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator, or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in Interstate Commission activities and other duties as may be determined by that state, including, but not limited to, development of policy concerning operations and procedures of the Compact within that state.

Article X.

Compacting States, Effective Date, and Amendment.

  1. Any state, the District of Columbia or its designee, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands, as defined in Article II of this Compact, is eligible to become a compacting state.
  2. The Compact shall become effective and binding upon legislative enactment of the Compact into law by no less than 35 of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the 35th jurisdiction. Thereafter, it shall become effective and binding as to any other compacting state upon enactment of the Compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the Compact by all states and territories of the United States.
  3. The Interstate Commission may propose amendments to the Compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

Article XI.

Withdrawal, Default, Termination, and Judicial Enforcement.

  1. Withdrawal. - Once effective, the Compact shall continue in force and remain binding upon each and every compacting state; provided that a compacting state may withdraw from the Compact by specifically repealing the statute which enacted the Compact into law.
  2. Technical Assistance, Fines, Suspension, Termination, and Default. - If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this Compact, or the bylaws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
    1. Remedial training and technical assistance as directed by the Interstate Commission;
    2. Alternative Dispute Resolution;
    3. Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission; and
    4. Suspension or termination of membership in the Compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted, and the Interstate Commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the Governor, the Chief Justice, or the Chief Judicial Officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council.
  3. Judicial Enforcement. - The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices to enforce compliance with the provisions of the Compact and its duly promulgated rules and bylaws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorneys' fees.
  4. Dissolution of Compact. - The Compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the Compact to one compacting state.

The effective date of withdrawal is the effective date of the repeal.

The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this Compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within 60 days of its receipt thereof.

The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.

Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the Compact or upon such later date as determined by the Interstate Commission.

The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this Compact, the bylaws, or duly promulgated rules, and any other grounds designated in Commission bylaws and rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. The Commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the Commission, the defaulting state shall be terminated from the Compact upon an affirmative vote of a majority of the compacting states, and all rights, privileges, and benefits conferred by this Compact shall be terminated from the effective date of termination.

Within 60 days of the effective date of termination of a defaulting state, the Commission shall notify the Governor, the Chief Justice or Chief Judicial Officer, the majority and minority leaders of the defaulting state's legislature, and the state council of the termination.

The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including any obligations, the performance of which extends beyond the effective date of termination.

The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.

Reinstatement following termination of any compacting state requires both a reenactment of the Compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.

Upon the dissolution of this Compact, the Compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded, and any surplus funds shall be distributed in accordance with the bylaws.

Article XII.

Severability and Construction.

  1. The provisions of this Compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the Compact shall be enforceable.
  2. The provisions of this Compact shall be liberally construed to effectuate its purposes.

Article XIII.

Binding Effect of Compact and Other Laws.

  1. Other Laws. - Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this Compact.
  2. Binding Effect of the Compact. - All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the compacting states.

All compacting states' laws, other than state Constitutions and other interstate compacts, conflicting with this Compact are superseded to the extent of the conflict.

All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.

Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.

In the event any provision of this Compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective, and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this Compact becomes effective."

History

(2005-194, s. 1.)

§ 7B-4002. Implementation of the Compact.

  1. The North Carolina State Council for Interstate Juvenile Supervision is hereby established. The Secretary of Public Safety, or the Secretary's designee, shall serve as the Compact Administrator for the State of North Carolina and as North Carolina's Commissioner to the Interstate Commission. The Secretary of Public Safety, or the Secretary's designee, is a member of the State Council and serves as chairperson of the State Council. In addition to the chairperson, the State Council shall consist of 10 members as follows:
    1. One member representing the executive branch, to be appointed by the Governor;
    2. One member from a victim's assistance group, to be appointed by the Governor;
    3. One at-large member, to be appointed by the Governor;
    4. One member of the Senate, to be appointed by the President Pro Tempore of the Senate;
    5. One member of the House of Representatives, to be appointed by the Speaker of the House of Representatives;
    6. A district court judge, to be appointed by the Chief Justice of the Supreme Court; and
    7. Four members representing the juvenile court counselors, to be appointed by the Secretary of Public Safety.
  2. The State Council shall meet at least twice a year and may also hold special meetings at the call of the chairperson. All terms are for three years.
  3. The State Council may advise the Compact Administrator on participation in the Interstate Commission activities and administration of the Compact.
  4. The members of the State Council shall serve without compensation but shall be reimbursed for necessary travel and subsistence expenses in accordance with the policies of the Office of State Budget and Management.
  5. The State Council shall act in an advisory capacity to the Secretary of Public Safety concerning this State's participation in Interstate Commission activities and other duties as may be determined by each member state, including recommendations for policy concerning the operations and procedures of the Compact within this State.
  6. The Governor shall by executive order provide for any other matters necessary for implementation of the Compact at the time that it becomes effective, and, except as otherwise provided for in this section, the State Council may promulgate rules or regulations necessary to implement and administer the Compact.

History

(2005-194, s. 1; 2012-194, s. 3.)

Effect of Amendments. - Session Laws 2012-194, s. 3, effective July 17, 2012, substituted "Secretary of Public Safety" for "Secretary of the Department of Juvenile Justice and Delinquency Prevention" twice in the introductory paragraph of subsection (a), in subdivision (a)(7), and in subsection (e).

Table of Comparable Sections for =nl Chapters 7A and 7B Prepared =nl by Legislative Services Office.

Table of Comparable Sections for

Chapters 7A and 7B Prepared

by Legislative Services Office

Present Former Section Section 7B-100 .............................................................. 7A-516 7B-101 .............................................................. 7A-517 7B-200 .............................................................. 7A-523 7B-201 .............................................................. 7A-524 7B-300 .............................................................. 7A-542 7B-301 .............................................................. 7A-543 7B-302 .............................................................. 7A-544 7B-303 ............................................................ 7A-544.1 7B-304 .............................................................. 7A-545 7B-305 .............................................................. 7A-546 7B-306 .............................................................. 7A-547 7B-307 .............................................................. 7A-548 7B-308 .............................................................. 7A-549 7B-309 .............................................................. 7A-550 7B-310 .............................................................. 7A-551 7B-311 .............................................................. 7A-552 7B-400 .............................................................. 7A-558 7B-401 .............................................................. 7A-559 7B-402 .............................................................. 7A-560 7B-403 .............................................................. 7A-561 7B-404 .............................................................. 7A-562 7B-405 .............................................................. 7A-563 7B-406 .............................................................. 7A-564 7B-407 .............................................................. 7A-565 7B-500 .............................................................. 7A-571 7B-501 .............................................................. 7A-572 7B-502 .............................................................. 7A-573 7B-503 .............................................................. 7A-574 7B-504 .............................................................. 7A-575 7B-505 .............................................................. 7A-576 7B-506 .............................................................. 7A-577 7B-507 ............................................................ 7A-577.1 7B-508 .............................................................. 7A-578 7B-600 .............................................................. 7A-585 7B-601 .............................................................. 7A-586 7B-602 .............................................................. 7A-587 7B-603 .............................................................. 7A-588 7B-700 .............................................................. 7A-620 7B-800 .............................................................. 7A-627 7B-801 ............................................................... 7A-629 7B-802 .............................................................. 7A-631 7B-803 .............................................................. 7A-632 7B-804 .............................................................. 7A-634 7B-805 .............................................................. 7A-635 7B-806 .............................................................. 7A-636 7B-807 .............................................................. 7A-637 7B-808 .............................................................. 7A-639 7B-900 .............................................................. 7A-646 7B-901 .............................................................. 7A-640 7B-902 .............................................................. 7A-641 7B-903 .............................................................. 7A-647 7B-904 .............................................................. 7A-650 7B-905 .............................................................. 7A-651 7B-906 .............................................................. 7A-657 7B-907 ............................................................ 7A-657.1 7B-908 .............................................................. 7A-659 7B-909 .............................................................. 7A-660 7B-910 .............................................................. 7A-661 7B-1000 ............................................................. 7A-664 7B-1001 ............................................................. 7A-666 7B-1002 ............................................................. 7A-667 7B-1003 ............................................................. 7A-668 7B-1004 ............................................................. 7A-669 7B-1100 .......................................................... 7A-289.22 7B-1101 .......................................................... 7A-289.23 7B-1102 ......................................................... 7A-289.23A 7B-1103 .......................................................... 7A-289.24 7B-1104 .......................................................... 7A-289.25 7B-1105 .......................................................... 7A-289.26 7B-1106 .......................................................... 7A-289.27 7B-1107 .......................................................... 7A-289.28 7B-1108 .......................................................... 7A-289.29 7B-1109 .......................................................... 7A-289.30 7B-1110 .......................................................... 7A-289.31 7B-1111 .......................................................... 7A-289.32 7B-1112 .......................................................... 7A-289.33 7B-1113 .......................................................... 7A-289.34 7B-1200 ............................................................. 7A-489 7B-1201 ............................................................. 7A-490 7B-1202 ............................................................. 7A-491 7B-1203 ............................................................. 7A-492 7B-1204 ............................................................. 7A-493 7B-1300 ............................................................ 110-147 7B-1301 ............................................................ 110-148 110-149 7B-1302 ............................................................ 110-150 7B-1400 ............................................................ 143-571 7B-1401 ............................................................ 143-572 7B-1402 ............................................................ 143-573 7B-1403 ............................................................ 143-574 7B-1404 ............................................................ 143-575 7B-1405 ............................................................ 143-576 7B-1406 .......................................................... 143-576.1 7B-1407 .......................................................... 143-576.2 7B-1408 .......................................................... 143-576.3 7B-1409 .......................................................... 143-576.4 7B-1410 .......................................................... 143-576.5 7B-1411 .......................................................... 143-576.6 7B-1412 ............................................................ 143-577 7B-1413 ............................................................ 143-578 7B-1414 ............................................................ 143-579 7B-1500 ............................................................. 7A-516 7B-1501 ............................................................. 7A-517 7B-1600 ............................................................. 7A-523 7B-1601 ............................................................. 7A-523 7B-1602 ............................................................. 7A-524 7B-1603 ............................................................. 7A-523 7B-1604 ............................................................. 7A-523 7A-524 7B-1700 ............................................................. 7A-530 7B-1701 ............................................................. 7A-531 7B-1702 ............................................................. 7A-532 7B-1703 ............................................................. 7A-533 7B-1704 ............................................................. 7A-535 7B-1705 ............................................................. 7A-536 7B-1706 ............................................................. 7A-534 7B-1800 ............................................................. 7A-558 7B-1801 ............................................................. 7A-559 7B-1802 ............................................................. 7A-560 7B-1803 ............................................................. 7A-561 7B-1804 ............................................................. 7A-562 7A-563 7B-1805 ............................................................. 7A-564 7B-1806 ............................................................. 7A-565 7B-1807 ................................................................ NEW 7B-1808 ................................................................. NEW 7B-1900 ............................................................. 7A-571 7B-1901 ............................................................. 7A-572 7B-1902 ............................................................. 7A-573 7B-1903 ............................................................. 7A-574 7B-1904 ............................................................. 7A-575 7B-1905 ............................................................. 7A-576 7B-1906 ............................................................. 7A-577 7B-1907 ............................................................. 7A-578 7B-2000 ............................................................. 7A-584 7B-2001 ............................................................. 7A-585 7B-2002 ............................................................. 7A-588 7B-2100 ............................................................. 7A-594 7B-2101 ............................................................. 7A-595 7B-2102 ............................................................. 7A-603 7B-2103 ............................................................. 7A-596 7B-2104 ............................................................. 7A-597 7B-2105 ............................................................. 7A-598 7B-2106 ............................................................. 7A-599 7B-2107 ............................................................. 7A-600 7B-2108 ............................................................. 7A-601 7B-2109 ............................................................. 7A-602 7B-2200 ............................................................. 7A-608 7B-2201 ........................................................... 7A-608.1 7B-2202 ............................................................. 7A-609 7B-2203 ............................................................. 7A-610 7B-2204 ............................................................. 7A-611 7B-2300 ............................................................. 7A-618 7B-2301 ............................................................. 7A-619 7B-2302 ............................................................. 7A-620 7B-2303 ............................................................. 7A-621 7B-2400 ............................................................. 7A-627 7B-2401 ............................................................. 7A-628 7B-2402 ............................................................. 7A-629 7B-2403 ............................................................. 7A-629 7B-2404 ............................................................. 7A-630 7B-2405 ............................................................. 7A-631 7B-2406 ............................................................. 7A-632 7B-2407 ............................................................. 7A-633 7B-2408 ............................................................. 7A-634 7B-2409 ............................................................. 7A-635 7B-2410 ............................................................. 7A-636 7B-2411 ............................................................. 7A-637 7B-2412 ............................................................. 7A-638 7B-2413 ............................................................. 7A-639 7B-2414 ............................................................. 7A-612 7B-2500 ............................................................. 7A-646 7B-2501 ............................................................. 7A-640 7B-2502 ............................................................. 7A-647 7B-2503 ............................................................. 7A-647 7B-2504 ............................................................. 7A-648 7B-2505 ................................................................ NEW 7B-2506 ............................................................. 7A-647 7A-648 7A-649 7B-2507 ................................................................ NEW 7B-2508 ................................................................ NEW 7B-2509 ................................................................ NEW 7B-2510 .......................................................... 7A-649(8) 7A-658 7B-2511 ............................................................. 7A-658 7B-2512 ............................................................. 7A-651 7B-2513 ............................................................. 7A-652 7B-2514 ............................................................. 7A-654 7A-655 7B-2515 ................................................................ NEW 7B-2516 ............................................................. 7A-656 7B-2517 ............................................................. 7A-653 7B-2600 ............................................................. 7A-664 7B-2601 ............................................................. 7A-665 7B-2602 ............................................................. 7A-666 7B-2603 ............................................................. 7A-666 7B-2604 ............................................................. 7A-667 7B-2605 ............................................................. 7A-668 7B-2606 ............................................................. 7A-669 7B-2700 ................................................................ NEW 7B-2701 ................................................................ NEW 7B-2702 ............................................................. 7A-647 7A-650 7B-2703 ................................................................ NEW 7B-2704 ................................................................ NEW 7A-647 7A-650 7B-2705 ................................................................ NEW 7B-2706 ................................................................. NEW 7B-2800 ............................................................. 7A-684 7B-2801 ............................................................. 7A-685 7B-2802 ............................................................. 7A-686 7B-2803 ............................................................. 7A-687 7B-2804 ............................................................. 7A-688 7B-2805 ............................................................. 7A-689 7B-2806 ............................................................. 7A-690 7B-2807 ............................................................. 7A-691 7B-2808 ............................................................. 7A-692 7B-2809 ............................................................. 7A-693 7B-2810 ............................................................. 7A-694 7B-2811 ............................................................. 7A-695 7B-2812 ............................................................. 7A-696 7B-2813 ............................................................. 7A-697 7B-2814 ............................................................. 7A-698 7B-2815 ............................................................. 7A-699 7B-2816 ............................................................. 7A-700 7B-2817 ............................................................. 7A-701 7B-2818 ............................................................. 7A-702 7B-2819 ............................................................. 7A-703 7B-2820 ............................................................. 7A-704 7B-2821 ............................................................. 7A-705 7B-2822 ............................................................. 7A-706 7B-2823 ............................................................. 7A-707 7B-2824 ............................................................. 7A-708 7B-2825 ............................................................. 7A-709 7B-2826 ............................................................. 7A-710 7B-2827 ............................................................. 7A-711 7B-2900 ................................................................ NEW 7B-2901 ............................................................. 7A-675 7B-2902 ........................................................... 7A-675.1 7B-3000 ............................................................. 7A-675 7B-3001 ................................................................ NEW 7A-675 7B-3100 .......................................................... 7A-675(g) 7A-675(h) 7B-3101 ........................................................... 7A-675.2 7B-3200 ............................................................. 7A-676 7B-3201 ............................................................. 7A-677 7B-3202 ............................................................. 7A-678 7B-3300 ........................................................... 7A-675.3 7B-3400 ........................................................... 110-44.1 7B-3401 ................................................................ NEW 7B-3402 ........................................................... 110-44.2 7B-3403 ........................................................... 110-44.3 7B-3404 ........................................................... 110-44.4 7B-3500 ............................................................. 7A-717 7B-3501 ............................................................. 7A-718 7B-3502 ............................................................. 7A-719 7B-3503 ............................................................. 7A-720 7B-3504 ............................................................. 7A-721 7B-3505 ............................................................. 7A-722 7B-3506 ............................................................. 7A-723 7B-3507 ............................................................. 7A-724 7B-3508 ............................................................. 7A-725 7B-3509 ............................................................. 7A-726 7B-3600 ............................................................. 7A-732 7B-3700 ............................................................. 110-50 7B-3701 ............................................................. 110-51 7B-3702 ............................................................. 110-52 7B-3703 ............................................................. 110-55 7B-3704 ............................................................. 110-56 7B-3705 ............................................................. 110-57 7B-3800 ........................................................... 110-57.1 7B-3801 ........................................................... 110-57.2 7B-3802 ........................................................... 110-57.3 7B-3803 ........................................................... 110-57.4 7B-3804 ........................................................... 110-57.5 7B-3805 ........................................................... 110-57.6 7B-3806 ............................................................ 110-57.7