Motion To Dismiss – CPS – North Carolina

How to write a Motion To Dismiss for CPS Juvenile Court In North Carolina

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts below that pertain to your situation and write those law numbers down. You will be needing them later in our course.

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: The term ‘in the presence of a minor’ means that the minor was in a position to see or hear the assault.

A minor is any person younger than age 18 who is residing with or is under the care and supervision of, and who has a personal relationship with, the person assaulted or the person committing the assault.

Consequences

Any person who, in the course of an assault, assault and battery, or affray, inflicts serious injury upon another person or uses a deadly weapon on a person with whom the person has a personal relationship, and does so in the presence of a minor, is guilty of a Class A1 misdemeanor. Upon conviction, the person shall be:

  • Placed on supervised probation in addition to any other punishment imposed by the court
  • Sentenced to an active punishment of no less than 30 days in addition to any other punishment imposed by the court for a second or subsequent violation

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused juvenile’ means any child younger than age 18 whose parent, guardian, custodian, or caregiver:

  • Inflicts or allows to be inflicted upon the child a serious physical injury by other than accidental means
  • Creates or allows to be created a substantial risk of serious physical injury to the child by other than accidental means
  • Uses or allows to be used upon the child cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior
  • Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the juvenile
  • Commits or allows to be committed the offense of human trafficking, involuntary servitude, or sexual servitude against the child
Neglect

‘Neglected juvenile’ means a child:

  • Who does not receive proper care, supervision, or discipline from his or her parent, guardian, custodian, or caregiver
  • Who is not provided necessary medical or remedial care
  • Who lives in an environment injurious to his or her welfare
  • Who has been placed for care or adoption in violation of law

In determining whether a child is a neglected juvenile, it is relevant whether that child lives in a home where another child has died as a result of suspected abuse or neglect or has been subjected to abuse or neglect by an adult who regularly lives in the home.

‘Serious neglect’ means conduct, behavior, or inaction of the juvenile’s parent, guardian, custodian, or caregiver 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.

Sexual Abuse/Exploitation

The term ‘abused juvenile’ includes any child younger than age 18 whose parent, guardian, custodian, or caregiver commits, permits, or encourages the commission of a violation of the following laws regarding sexual offenses by, with, or upon the child:

  • Forcible rape, statutory rape of a child by an adult, or first-degree statutory rape
  • A forcible sex offense, statutory sexual offense with a child by an adult, or first-degree statutory sexual offense
  • Sexual activity by a substitute parent or custodian
  • Sexual activity with a student
  • Unlawful sale, surrender, or purchase of a minor
  • A crime against nature or incest
  • Preparation of obscene photographs, slides, or motion pictures of the juvenile
  • Employing or permitting the juvenile to assist in a violation of the obscenity laws
  • Dissemination of obscene material to the juvenile
  • Displaying or disseminating material harmful to the juvenile
  • First- and second-degree sexual exploitation of the juvenile
  • Promoting the prostitution of the juvenile
  • Taking indecent liberties with the juvenile
Emotional Abuse

The term ‘abused juvenile’ includes any child younger than age 18 whose parent, guardian, custodian, or caregiver creates or allows to be created serious emotional damage to the child. Serious emotional damage is evidenced by a child’s severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others.

Abandonment

Citation: Gen. Stat. § 7B-101
The term ‘neglected juvenile’ includes a child who has been abandoned.

Standards for Reporting

Citation: Gen. Stat. § 7B-301
A report is required when any person has cause to suspect that any juvenile is abused, neglected, or dependent or has died as the result of maltreatment.

Persons Responsible for the Child

‘Responsible individual’ means a parent, guardian, custodian, or caretaker who abuses or seriously neglects a juvenile.

The term ‘caretaker’ means any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a juvenile in a residential setting, including:

  • A stepparent, foster parent, or an adult member of the juvenile’s household
  • An adult relative entrusted with the juvenile’s care
  • 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
  • Any employee or volunteer of a division, institution, or school operated by the Department of Health and Human Services
Exceptions

No exceptions are specified in statute.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

  • Attempting to cause bodily injury or intentionally causing bodily injury
  • Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in § 14-277.3A, that rises to such a level as to inflict substantial emotional distress
  • Committing a sex offense, as defined in §§ 14-27.2 through 14-27.7
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

The term ‘personal relationship’ means a relationship in which the parties involved:

  • Are current or former spouses
  • Are persons of the opposite sex who live together or have lived together
  • Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren
  • Have a child in common
  • Are current or former household members
  • Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship

For purposes of this subdivision, a dating relationship is one in which the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.

For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under age 16.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

The data [in the central registry] shall be furnished by county directors of social services to the Department of Health and Human Services and shall be confidential, subject to policies adopted by the Social Services Commission providing for its use for study and research and for other appropriate disclosure.

Persons or Entities Allowed Access to Records

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 below, 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 following persons may examine the juvenile’s record and obtain copies of written parts of the record without an order of the court:

  • The person named in the petition as the juvenile
  • The guardian ad litem
  • The county Department of Social Services
  • The juvenile’s parent, guardian, or custodian, or the attorney for the juvenile or his or her parent, guardian, or custodian

The director of the Department of Social Services shall maintain a record of the cases of children under protective custody by the department or under placement by the court, including family background information; reports of social, medical, psychiatric, or psychological information concerning a child or the child’s family; interviews with the child’s family; or other information that the court finds should be protected from public inspection in the best interests of the child. These records may be released to the following:

  • The child’s guardian ad litem or the child, including a juvenile who has reached age 18 or been emancipated
  • A district or superior court judge presiding over a civil matter in which the department is not a party
  • A district or superior court judge presiding over a criminal or delinquency matter, who shall conduct an in camera review before releasing to the defendant or child any confidential records maintained by the department
  • A parent, guardian, custodian, or caregiver in accordance with § 7B-700

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.

When Public Disclosure of Records is Allowed

Notwithstanding any other provision of law, a public agency shall disclose to the public, upon request, the findings and information related to a child fatality or near fatality if:

  • A person is criminally charged with having caused the child fatality or near fatality.
  • 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.

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.

Within 5 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:

  • Is not authorized by State law
  • Is likely to cause mental or physical harm or danger to a minor child residing in the deceased or injured child’s household
  • Is likely to jeopardize the State’s ability to prosecute the defendant
  • Is likely to jeopardize the defendant’s right to a fair trial
  • Is likely to undermine an ongoing or future criminal investigation
  • Is not authorized by Federal law and regulations
Use of Records for Employment Screening

The department may provide information from its list [of individuals responsible for child abuse or neglect] 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.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone who makes a report pursuant to the reporting laws, 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, or otherwise participates in the program authorized by law is immune from any civil or criminal liability that might otherwise be incurred or imposed for such action, provided that the person was acting in good faith.

In any proceeding involving liability, good faith is presumed.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who has cause to suspect that a child is abused, neglected, or dependent shall report the case to the Department of Social Services in the county where the child resides. The report may be made orally, by telephone, or in writing.

Content of Reports

The report shall contain information as is known to the reporter, including:

  • The name and address of the child and the child’s parent(s), guardian, or caregiver
  • The age of the child
  • The names and ages of other children in the home
  • The present whereabouts of the child, if not at the home address
  • The nature and extent of any injury or condition resulting from abuse or neglect
  • Any other information that the reporter believes might be helpful in establishing the need for protective services or court intervention
Reporting Suspicious Deaths

A mandated reporter who has cause to believe that a child has died as a result of maltreatment shall report the case to the department.

The department shall immediately ascertain if other children are in the home and in need of protective services or immediate removal from the home.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports shall be made to the Department of Social Services in the county where the child resides.

Upon receipt of any report of sexual abuse of the child in a child care facility, the director shall notify the State Bureau of Investigation within 24 hours or on the next workday.

Initial Screening Decisions

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, 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.

Agency Conducting the Assessment/Investigation

When a report of abuse, neglect, or dependency is received, the director of the Department of Social Services shall conduct the assessment or investigation.

Assessment/Investigation Procedures

The assessment and evaluation shall include a visit to the place where the child resides, except when the report alleges abuse or neglect in a child care facility. When a report alleges abuse or neglect in a child care facility, a visit to the place where the child 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 child is a missing child.

In regulation: When a report is received, the county director shall check the county agency’s records and the State central registry to ascertain if any previous reports have been made concerning the alleged child victim.

The county director shall make an investigation to assess:

  • Whether the specific environment in which the child is found meets the child’s need for care and protection
  • The facts regarding the existence of abuse, neglect, or dependency
  • The nature and extent of any injury or condition resulting from abuse, neglect, or dependency
  • The risk of harm to and need for protection of the child

There shall be face-to-fact interviews with the alleged child victim, the parent or caregiver, the alleged perpetrator, and any person who has information about the condition of the child.

The county director shall implement a structured decision-making process that includes assessments of the immediate safety and future risk of harm to the child and the family’s strengths and needs. In addition, there shall be documentation of an assessment of all of the information obtained during the investigation, any safety response plan, and the case decision.

Timeframes for Completing Investigations

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, the director shall immediately initiate an assessment, take appropriate steps to assume temporary custody of the child, and take appropriate steps to secure an order for nonsecure custody of the child.

Classification of Reports

A report is considered ‘found’ when an investigation reveals the presence of abuse, neglect, or dependency. A report is considered ‘not found’ when a thorough investigation does not reveal abuse, neglect, or dependency.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Any person or institution that has cause to suspect abuse or neglect shall report.

Reporting by Other Persons

All persons who have cause to suspect that any juvenile is abused, neglected, or dependent, or has died as the result of maltreatment, shall report.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

A report is required when a reporter has cause to suspect that any juvenile is abused, neglected, or dependent, or has died as the result of maltreatment.

Privileged Communications

No privilege shall be grounds for failing to report, 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.

Inclusion of Reporter’s Name in Report

The report must include the name, address, and telephone number of the reporter.

Disclosure of Reporter Identity

The Department of Social Services shall hold the identity of the reporter in strictest confidence, except that 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.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

[When imposing a sentence upon conviction of a crime,] the court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court.

An aggravated or mitigated sentence is allowed if the jury or the court finds that aggravating factors exist or the court finds that mitigating factors exist. In such case, the court may depart from the presumptive range of sentences specified in § 15A-1340.17(c)(2). If aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors that are present, it may impose a sentence that is permitted by the aggravated range described in [the chart of punishments in] § 15A-1340.17(c)(4). If the court finds that mitigating factors are present and are sufficient to outweigh any aggravating factors that are present, the court may impose a sentence that is permitted by the mitigated range described in § 15A-1340.17(c)(3). Aggravating factors include:

  • The offense involved the sale or delivery of a controlled substance to a minor.
  • The offense is the manufacture of methamphetamine and was committed where a person under age 18 lives, was present, or was otherwise endangered by exposure to the drug, its ingredients, its byproducts, or its waste.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

When a petition alleges that a child is abused, neglected, or dependent, the court shall appoint a guardian ad litem (GAL) to represent the child.

In every case where a nonattorney is appointed as a GAL, an attorney shall be appointed in the case in order to ensure protection of the child’s legal rights throughout the proceeding.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

The Office of Guardian ad Litem Services is established in the Administrative Office of the Courts to provide services in accordance with § 7B-601 to abused, neglected, or dependent children involved in judicial proceedings and to ensure that all participants in these proceedings are adequately trained to carry out their responsibilities. Each local program shall consist of volunteer GALs, at least one program attorney, a program coordinator who is a paid State employee, and any clerical staff 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.

Specific Duties

The GAL and attorney advocate have standing to represent the child in all actions to which they have been appointed. The appointment shall terminate when the permanent plan has been achieved for the child and approved by the court. The court may reappoint the GAL pursuant to a showing of good cause upon motion of any party, including the GAL or the court.

The duties of the GAL program shall be:

  • To make an investigation to determine the facts, the needs of the child, 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 ensure that the orders of the court are executed properly
  • To report to the court when the needs of the child are not met
  • To protect and promote the best interests of the child until formally relieved of the responsibility by the court

The court may authorize the GAL to accompany the juvenile to court in any criminal action wherein the juvenile may be called on to testify in a matter relating to abuse.

The GAL has the authority to obtain any information or reports, whether or not confidential, that may in the GAL’s opinion be relevant to the case. No privilege other than the attorney-client privilege may be invoked to prevent the GAL and the court from obtaining such information. The confidentiality of the information or reports shall be respected by the GAL, 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.

How the Representative Is Compensated

An attorney or GAL shall be paid a reasonable fee fixed by the court or by direct engagement for specialized GAL services through the Administrative Office of the Courts.

The court may require payment of the fee for an attorney or GAL from a person other than the child. In no event shall the parent or guardian be required to pay the fees for a court-appointed attorney or GAL in an abuse, neglect, or dependency proceeding unless the child 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 GAL 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.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

The Department of Social Services shall develop a written out-of-home family services agreement within 30 days of admission of a child in a family foster home.

In policy: An out-of-home family services agreement is implemented for all families when the child is placed in the custody of the department, whether or not the child is removed from the home. For children in the legal custody of the department, the agreement shall be completed within 30 days of removal of the child from the home.

Who May Participate in the Case Planning Process

The out-of-home family services agreement shall be developed in cooperation with the child, parents, guardian or legal custodian, and foster parents when possible.

In policy: The social worker is responsible for immediately engaging the family, both maternal and paternal, in the planning process, which is focused on correcting the conditions that caused the department to be involved in the family. Whether or not the child enters custody or placement responsibility, the planning process shall involve the family and children (appropriate to their age and ability) and placement providers.

Contents of a Case Plan

The out-of-home family services agreement shall be based upon an assessment of the needs of the child, parents, or guardian. The agreement shall include goals stated in specific, realistic, and measurable terms and plans that are action-oriented, including responsibilities of staff, parents or guardian, other family members, legal custodian, foster parents, and the child.

In policy: The out-of-home family services agreement is used to define the primary permanency plan, identify the family’s strengths and needs, set objectives and case activities to assist the family in resolving those issues that place the child at risk, specify consequences if the plan does or does not succeed, and to establish the alternative permanency plan if the primary plan does not succeed.

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

Reasonable efforts to preserve or reunify families may be made concurrently with efforts to plan for the juvenile’s adoption, to place the juvenile with a legal guardian, or to place the juvenile in another permanent arrangement.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

In any case in which 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 6 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 subsequent permanency planning hearings. The subsequent permanency planning hearings shall be held at least every 6 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.

If the court finds that a proceeding to terminate the parental rights of the child’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.

Persons Entitled to Attend Hearings

Notice of a hearing shall be provided to:

  • The parents
  • The child if he or she is age 12 or older
  • The guardian
  • The person providing care for the child
  • The custodian or agency with custody
  • The guardian ad litem
  • Any other person or agency the court may specify

A person providing care for the juvenile shall not be made a party to the proceeding solely based on receiving notice and the right to be heard.

Determinations Made at Hearings

At each hearing, the court shall determine:

  • Whether services have been offered to reunite the child with either parent
  • Whether visitation has occurred and whether the visitation plan should be modified
  • Whether efforts to reunite the child with either parent clearly would be futile or inconsistent with the child’s safety and need for a safe, permanent home
  • Whether the child’s current foster care placement is appropriate
  • If the child is age 16 or 17, whether there is an Independent Living assessment and, if appropriate, an Independent Living plan
  • When and if termination of parental rights should be considered

At any permanency planning hearing, the court shall additionally consider the following:

  • Whether the child can be placed with a parent within the next 6 months
  • When the child’s placement with a parent is unlikely within 6 months:
    • Whether legal guardianship or custody with a relative or another suitable person should be established
    • Whether adoption should be pursued
    • Whether the child should remain in the current placement or be placed in another permanent living arrangement
  • Whether the county department has made reasonable efforts to implement the permanent plan for the child
  • Whether the parent:
    • Is making adequate progress under the case plan
    • Is actively participating in or cooperating with the plan
    • Remains available to the court, the department, and the child’s guardian ad litem
    • Is acting in a manner inconsistent with the health or safety of the child
  • If the child is age 14 or older:
    • The services provided to assist the child in making a transition to adulthood
    • The steps the county department is taking to ensure that the foster family or other care provider follows the reasonable and prudent parent standard
    • Whether the child has regular opportunities to engage in age-appropriate or developmentally appropriate activities
Permanency Options

At any permanency planning hearing, the court shall adopt one or more of the following permanent plans the court finds is in the child’s best interest:

  • Reunification
  • Adoption
  • Guardianship
  • Custody to a relative or other suitable person
  • Another Planned Permanent Living Arrangement pursuant to § 7B-912
  • Reinstatement of parental rights pursuant to § 7B-1114

 

Determining the Best Interests of the Child

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Current Through March 2016

An order placing or continuing the placement of a juvenile in the nonsecure custody of a county Department of Social Services shall contain:

  • A finding that the juvenile’s continuation in or return to the juvenile’s own home would be contrary to the juvenile’s health and safety
  • Specific findings as to whether a county 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.

This subchapter shall be interpreted and construed to implement the following purposes and policies:

  • To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents
  • To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family
  • To provide 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
  • To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents
  • To provide standards, consistent with the Adoption and Safe Families Act of 1997, P.L. 105-89, for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile’s best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may terminate the parental rights upon a finding of one or more of the following:

  • The parent has abused or neglected the child.
  • The parent has willfully left the child in foster care for more than 12 months without showing reasonable progress in correcting the conditions that led to the removal of the child.
  • The child has been in an out-of-home placement for a continuous period of 6 months, and the parent has willfully failed for such period to pay a reasonable portion of the cost of care for the child although financially able to do so.
  • A noncustodial parent has for a period of 1 year or more willfully failed without justification to pay for the care, support, and education of the child, as required by a custody agreement.
  • A putative father of a child born out of wedlock has not established his paternity.
  • The parent is incapable of providing for the proper care of the child as a result of substance abuse, mental retardation, mental illness, or organic brain syndrome.
  • The parent has willfully abandoned the child for at least 6 consecutive months, or the parent has voluntarily abandoned an infant pursuant to § 7B-500 for at least 60 consecutive days.
  • 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 parental rights of the parent to another child have been terminated involuntarily, and the parent lacks the ability or willingness to establish a safe home.
  • The parent has been convicted of a sexually related offense that resulted in the conception of the child.
Circumstances That Are Exceptions to Termination of Parental Rights

No parental rights shall be terminated for the sole reason that the parents are unable to care for the child on account of their poverty.

Circumstances Allowing Reinstatement of Parental Rights

A child whose parent’s rights have been terminated, the guardian ad litem attorney, or a county Department of Social Services with custody of the child may file a motion to reinstate the parent’s rights if all of the following conditions are satisfied:

  • The child is at least age 12 or, if the child is younger than 12, the motion alleges extraordinary circumstances requiring consideration of the motion.
  • The child 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.
  • The order terminating parental rights was entered at least 3 years before the filing of the motion, unless the child’s permanent plan is no longer adoption.

At the hearing on the motion, the court shall consider whether reinstatement is in the child’s best interests, based on the following criteria:

  • What efforts were made to achieve adoption or a permanent guardianship
  • Whether the parent has remedied the conditions that led to the termination of parental rights
  • Whether the child would receive proper care and supervision in a safe home if placed with the parent
  • The child’s age, maturity, and ability to express a preference
  • The parent’s willingness to resume contact with the child and to have parental rights reinstated
  • The child’s willingness to resume contact with the parent
  • Services that would be needed by the child and the parent if rights were reinstated
  • Any other criteria the court deems necessary

At any hearing under this section, the court may do one of the following:

  • Enter an order for visitation
  • Order that the juvenile be placed in the former parent’s home and supervised by the department

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.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means an individual, as defined in § 7B-600, who is appointed by the court to serve as the guardian of the person for a juvenile. 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 marriage, enlisting in the armed forces and enrollment in school. The guardian also may consent to any necessary remedial, psychological, medical, or surgical treatment for the juvenile.

Purpose of Guardianship

When reunification efforts are determined to be contrary to the health, safety, or best interests of a child who is in the legal custody or placement authority of the county Department of Social Services, the county shall assess relative or kinship placements as a permanency option, including the child’s birth father and paternal relatives. If the family is willing to provide a permanent home for the child but is not willing to adopt, then guardianship and custody should be offered to the family as alternatives.

Guardianship shall be considered only when reunification and adoption are ruled out as permanency options.

When placement with a relative for the purposes of foster care is made, consideration should be made as to the potential for that placement to become permanent through adoption or guardianship if reunification with the parent is not possible.

Guardianship will be considered when:

  • The permanent plan for the child is neither reunification nor adoption.
  • The child has been in agency custody for at least a year.
  • The child has lived with this provider for at least 6 months.
  • It has been determined that continued placement with this caregiver would be in the best interests of the child and meets the child’s need for permanency and safety.
  • The caregiver is willing to assume guardianship of the person of the child.
A Guardian’s Rights and Responsibilities

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 child or may arrange a suitable placement for the child and may represent the child in legal actions before any court. The guardian may consent to certain actions on the part of the child in place of the parent including marriage, enlisting in the Armed Forces of the United States, and enrollment in school. The guardian also may consent to any necessary remedial, psychological, medical, or surgical treatment for the child.

Qualifying the Guardian

Before conducting a review hearing, the court may order the county department to conduct an investigation and file a written report of the investigation regarding the suitability of the guardian.

In policy: As part of its assessment, the county department must determine whether:

  • The caregiver is willing to provide a permanent home through the child’s minority and to assume legal guardianship for the child.
  • The caregiver is willing to provide age-appropriate supervision for the child.
  • The caregiver has sufficient financial resources to meet the child’s basic needs.
  • The caregiver is willing and able to protect the child from continued maltreatment and establish visitation and appropriate contact (including phone calls) with the birth family.
  • The caregiver’s home is safe and appropriate for the child.
  • Any resident in the household has a history of criminal behavior that precludes the family from caring for the child.
  • There have been any substantiated reports of abuse, neglect, or dependency concerning any resident in the home.
  • The caregiver is physically and mentally capable of providing care and supervision.
  • The caregiver has a strong, quality relationship with the child and can provide a nurturing environment for the child.
  • The caregiver has a relationship with the child’s parent that will allow the placement to succeed and the permanent plan to be achieved.
  • The family dynamics in the kinship home will support the child’s continued recovery from abuse or neglect.
  • The caregiver’s health status will permit the kinship care parent to care for the child for the foreseeable future.
Procedures for Establishing Guardianship

In any case in which no parent appears in a hearing with the child or when the court finds it would be in the best interests of the child, the court may appoint a guardian of the person for the child. In any case in which the court has determined that the appointment of a relative or other suitable person as guardian of the person for a child is the permanent plan for the child and appoints a guardian under this section, the guardian becomes a party to the proceeding.

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 child understands the legal significance of the appointment and will have adequate resources to care appropriately for the child.

In policy: North Carolina law requires the judge who orders a child’s placement or continued placement to consider whether an appropriate placement with a relative is available. If the judge finds that a relative is willing and able to provide proper care and supervision in a safe home, the judge must order placement of the child with the relative.

Legal guardianship can be given to a relative or any other person deemed suitable by the court. Persons other than relatives to consider include foster parents or adults who have a kinship bond with the child, even if they are not related by blood.

Contents of a Guardianship Order

Juvenile court guardianship, as described in § 7B-600, assigns legal authority for the guardian to act on behalf of the child without further department involvement, but with continued supervision of the court.

Juvenile court guardianship does not confer authority over the disposition of a child’s estate or management of the child’s income.

Modification/Revocation of Guardianship

The authority of the guardian shall continue until the guardianship is terminated by court order, the child is emancipated, or the child reaches the age of majority.

The court may terminate the guardianship only if:

  • The court finds that the relationship between the guardian and the child is no longer in the child’s best interests.
  • The guardian is unfit.
  • The guardian has neglected a guardian’s duties.
  • The guardian is unwilling or unable to continue assuming a guardian’s duties.

Upon 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 child. The court may modify or vacate the order in light of changes in circumstances or the needs of the child. Notwithstanding the provision of this subsection, if a guardian of the person has been appointed for the child, and the court also has made findings that guardianship is the permanent plan for the child, the court shall proceed in accordance with § 7B-600(b).

In any case in which the court finds the child 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 child, until terminated by order of the court, or until the child is otherwise emancipated.

In policy: A guardian may resign from the position of guardian, but his or her authority cannot be removed unless he or she is determined by the court to be unfit.

Eligibility for Guardianship Subsidy

Persons assuming legal guardianship of children in the custody of the department are not eligible for State foster care board payments. They are eligible for child support paid by the parents. The child also may be eligible for Medicaid, since the guardian’s income is not considered. Countable income includes Social Security benefits, child support payments, and, if applicable, guardianship subsidy.

Guardianship subsidies are only available in counties that elect to provide the subsidy, either through title IV-E waiver or county funds. The State at this point has not approved funding to provide the guardianship subsidy statewide.

Links to Agency Policies

North Carolina Department of Health and Human Services Policy Manual, § 1201(E), Permanent Placement Optionsexternal link

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

A child alleged to be abused, neglected, or dependent may be placed in nonsecure custody with the Department of Social Services in:

  • A licensed foster home
  • A facility operated by the department
  • Any other home or facility, including a relative’s home approved by the court

In placing a child in nonsecure custody, the court shall first consider whether a relative of the child is willing and able to provide proper care and supervision of the child in a safe home.

If the court does not place the child with a relative, the court may consider whether nonrelative kin is willing and able to provide proper care and supervision of the child in a safe home. Nonrelative kin is an individual having a substantial relationship with the child.

In the case of a juvenile member of a State-recognized Tribe, 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 child. The court may order the department to notify the child’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 child with nonrelative kin if the court finds the placement is in the child’s best interests.

In placing a child in out-of-home care, the court shall first consider whether a relative of the child is willing to provide care for the child.

Requirements for Placement with Relatives

The relative must be willing and able to provide proper care and supervision of the child 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 child with the relative unless the court finds that the placement is contrary to the best interests of the child.

Requirements for Placement of Siblings

Exceptions to the number of children that may be placed in foster family home or therapeutic foster home at any time may be made if written documentation is submitted to the licensing authority that siblings will be placed together and the foster home complies with fire and building safety regulations. The out-of-home family services agreement for each sibling shall specify that siblings will be placed together and shall also address the foster parents’ skill, stamina, and ability to care for the children.

Relatives Who May Adopt

A relative, including a grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, or great-grandparent, may adopt the child.

Requirements for Adoption by Relatives

A preplacement assessment is not required if the child is placed directly with a relative.

The Department of Health and Human Services shall ensure that the criminal histories of all prospective adoptive parents seeking to adopt a minor who is in the custody or placement responsibility of a county Department of Social Services, and the criminal histories of all individuals age 18 or older who reside in the prospective adoptive home, are checked prior to placement.

 

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the diligent use of abuse prevention or reunification services by the Department of Social Services when a juvenile 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 are 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.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent or eliminate the need for placement of the juvenile out of the home
  • To develop and implement a permanent plan for the child when a court determines that the juvenile is not to be returned home
When Reasonable Efforts Are NOT Required

The court shall direct that reasonable efforts for reunification shall not be required if the court makes written findings of fact pertaining to any of the following:

  • A court has determined that aggravated circumstances exist because the parent has committed, encouraged the commission of, or allowed the continuation of any of the following upon the juvenile:
    • Sexual abuse
    • Chronic physical or emotional abuse
    • Torture
    • Abandonment
    • Chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction in the juvenile
    • Any other act, practice, or conduct that increased the enormity or added to the injurious consequences of the abuse or neglect
  • A court has terminated involuntarily the parental rights of the parent to another child of the parent.
  • A court has determined that the parent:
    • Has committed murder or voluntary manslaughter of another child of the parent
    • Has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent
    • Has committed a felony assault resulting in serious bodily injury to the child or another child of the parent
    • Has committed sexual abuse against the child or another child of the parent
    • Has been required to register as a sex offender on any government-administered registry

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent, adoptive parent, or legal guardian who suffers from a progressive chronic or irreversibly fatal illness may petition for the appointment of a standby guardian.

How to Establish a Standby Guardian

A petition for the judicial appointment of a standby guardian of a minor child shall:

  • Identify the petitioner, the minor child, and the person designated to be the standby guardian
  • State that the authority of the standby guardian is to become effective upon the petitioner’s death, incapacity, or debilitation, with the consent of the petitioner, or upon the petitioner’s signing of a written consent stating that the standby guardian’s authority is in effect, whichever occurs first
  • State that the petitioner suffers from a progressively chronic illness or an irreversible fatal illness, and the basis for such a statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question

A parent also may designate a standby guardian by means of a written designation, signed by the parent in the presence of two witnesses who are at least age 18, other than the standby guardian, who shall also sign the writing.

Evidence is required at the hearing to determine whether the requirements of the statute have been satisfied.

How Standby Authority is Activated

The authority of the standby guardian commences upon the parent’s death, mental incapacity, physical debilitation plus consent, or written consent alone. An attending physician must document the parent’s incapacity or debilitation.

The standby guardian must file confirming documents with the court within 90 days of the triggering event. If the guardianship is by written designation, the standby guardian must petition the court within 90 days for appointment as guardian.

Involvement of the Noncustodial Parent

Citation: Gen. Stat. § 35A-1373
Notice to any biological or adoptive parent is required, along with a copy of the petition. The court may proceed if no complaint for custody of the child has been filed within 30 days.

Authority Relationship of the Parent and the Standby

The commencement of the standby guardian’s authority due to incapacity, debilitation, or written consent shall not itself divest the parent of any parental or guardianship rights, but shall confer upon the standby guardian concurrent authority with respect to the minor child.

Withdrawing Guardianship

The petitioner may revoke a judicially created guardianship by executing a written revocation, filing it with the court, and notifying the standby guardian.

The standby guardian may at any time before the commencement of the person’s authority renounce the appointment by executing a written renunciation, filing it with the court, and promptly providing the petitioner with a copy of the renunciation.

The parent may revoke a written designation at any time prior to commencement by notifying the standby guardian in writing.

When the authority of the standby guardian is due to incapacity or debilitation, and the parent is subsequently restored to capacity or ability to care for the child, the authority of the standby guardian based on that incapacity or debilitation shall be suspended.

 

CPS Statutes & Rules

 

1201 Child Placement Services Table of Contents

Forms Table Of Contents

 

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