Juvenile Law Update District Court Judges’ Conference June 17, 2004 Janet Mason Institute of Government The University of North Carolina at Chapel Hill

CHILD PROTECTION ISSUES

1.Effect of appeals on trial court 2.Jurisdiction 3.GAL and attorney for parent 4.Procedure 5.Evidence, admissibility 6. Sufficiency of evidence 7.Sufficiency of findings 8.Abuse of discretion

1.Effect of Appeals on the Trial Court ? ? ? ? ? ? ? ?

If an adjudication, disposition, or review order is on appeal, can the trial court proceed to terminate parental rights?

Is this an issue about: *Statutory Interpretation? *Jurisdiction? *Due Process/Fairness?

Answers May Come From N.C. Supreme Court In re N.B., appeal pending General Assembly

2. JURISDICTION ISSUES

SUBJECT MATTER JURISDICTION Findings of fact must support a conclusion of law that the court has subject matter jurisdiction under the UCCJEA.

STANDING DSS can petition for termination of parental rights only if: 1.DSS has court-ordered custody of the child, or 2.One parent has surrendered the child to DSS for adoption.

PERSONAL JURISDICTION A parent can waive the defenses of Jurisdiction over the person Insufficiency of process Insufficiency of service of process

3. GUARDIAN AD LITEM AND ATTORNEY FOR PARENT

TRUE – FALSE The court must appoint a guardian ad litem for the parent any time “dependency” is alleged. Communications between the parent and guardian ad litem are privileged. An indigent parent must ask for counsel before the day of the hearing?

4. PROCEDURE

Entry of orders within 30 days. Insufficient recording/transcript Interstate Compact on the Placement of Children Consolidating adjudication and disposition hearings

5. EVIDENCE Judge Rubin

Mashburn: no reversible evidence error Not hearsay Error, but not prejudicial Combination of medical exception and business records exception Appeal pending in court of appeals.

6. SUFFICIENCY OF THE EVIDENCE

“Where no evidence is presented at an adjudicatory hearing, the trial court cannot make findings of fact based on clear and convincing evidence.”

Where no evidence is presented, the trial court cannot make findings of fact. “A trial court may not find as fact that which was not presented as evidence at trial.”

7. SUFFICIENCY OF THE FINDINGS

Findings Sufficient – Neglect of Newborn Court’s determination is predictive Court must consider historical information Court decides what weight to give to evidence of prior neglect of another child

Findings Sufficient – Neglect by Incarcerated Parent Parent’s failure to write or call seek contact with child attempt to show love or affection inquire about child’s welfare send gift or acknowledgement on child’s birthday

SUFFICIENCY OF EVIDENCE AND FINDINGS

Nonsupport Ground for Termination Sufficient (with dissent): Father – worked continuously while incarcerated – earned $.40 to $1.00 per day –paid 0 for six months

Nonsupport Ground for Termination Insufficient: No specific evidence or findings about – employment – earnings – other financial means during relevant 6-month period

Before ceasing reunification efforts, must have evidence & findings that: 1.efforts would be futile, or 2.parent’s rights to another child were terminated, or 3.a court has determined that the parent a)has subjected child to aggravated circumstances or b)has committed one of certain crimes against a child.

Ground for termination or for ceasing reunification efforts: Parent 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 Defined in GS (a3) More serious than serious physical injury

Dispositional Findings Adjudication alone is not sufficient basis for placing child in DSS custody. Must have evidence and findings to support a conclusion that the disposition is in the child’s best interest.

Major Pitfalls Failure to reference statute Reciting evidence or testimony Reciting allegations in the petition Wholesale incorporation of written reports

8. ABUSE OF DISCRETION

Abuse, Neglect, Dependency Disposition order must contain appropriate findings of fact and conclusions of law. Appellate court will not disturb if there is some evidence to support the findings and the findings support the conclusion.

Termination At disposition the court has discretion to terminate parental rights consistent with the child’s best interests. After finding a ground, the court may not dismiss without making findings and conclusions.

OTHER ISSUES Putative father’s consent to adoption Denial of visitation Discovery of confidential information

DELINQUENT JUVENILES Variance in petition In-custody interrogation Waiver of juvenile rights Probation that requires admission – ”classic penalty”