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Deana Fleming Wendy Sotolongo Angie Stephenson

Constitutional Framework & Due Process. Deana Fleming Wendy Sotolongo Angie Stephenson Associate Counsel Parent Representation Child Welfare Attorney Guardian ad Litem Indigent Defense Attorney General Office.

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Deana Fleming Wendy Sotolongo Angie Stephenson

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  1. Constitutional Framework & Due Process Deana Fleming Wendy Sotolongo Angie Stephenson Associate Counsel Parent Representation Child Welfare Attorney Guardian ad Litem Indigent Defense Attorney General Office

  2. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Fourteenth Amendment

  3. Due Process & Protection of Family "the interest of parents in the care, custody and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65 (2000).

  4. Constitutional Right to Parent • Parents enjoy a protected liberty interest in the care, custody, control, and companionship of their children. • The protection enjoyed by parents is based upon the presumption that the parent will act in the child’s best interest. • See e.g. Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981). • The Due Process Clause of the 14th Amendment ensures that this liberty interest is protected when there is state intervention due to abuse, neglect, or dependency. • See Santosky v. Kramer, 455 U.S. 745 (1982).

  5. Children’s Protected Interest in Family Integrity • Courts recognize that children have a constitutionally protected liberty interest in the right to family integrity that extends to both parents and their children. • “[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of the natural relationship.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). • “Parents and children have  a well-elaborated constitutional right to live together without governmental interference.” Wallis v. Spencer, 202 F.3d. 1126, 1136 (9th Cir. 2000).

  6. The Right is Not Absolute • “The rights of the parents are a counterpart of the responsibilities they have assumed.” • “But the mere existence of a biological link does not merit equivalent constitutional protection.” • Lehr v. Robertson, 463 U.S. 248, 257 (1983) • Third party (such as DSS) may interfere with the protected parent-child relationship when a parent: (1) Acts inconsistently with his or her protected status OR (2) Otherwise unfit

  7. Best Interest Standard: An Equation • Parent acting inconsistently with protected status • or • Unfitness • + • Clear and convincing evidence • = • BEST INTEREST OF THE CHILD STANDARD

  8. Standard Applies in Juvenile Court • Order granting custody to grandmother remanded when juvenile’s adjudication based solely on the actions of a mother, and no findings of fact or conclusions of law as to whether the father acted inconsistently with his constitutional rights to parent had been made. In re D.M., 712 S.E.2d 355 (2011).

  9. North Carolina Cases • In re Yow, 40 N.C. App. 688 (1979). • Petersen v. Rogers, 337N.C. 397 (1994). • Price v. Howard 346 N.C. 68 (1997). • The state may interfere with the parent-child relationship only when the parent is unfit or has acted inconsistently with the parent’s constitutionally protected interest.

  10. Owenby v. Young , 357 N.C. 142 (2003). “[A] natural parent has forfeited his or her constitutionally protected status [upon a] finding of any one of the grounds in N.C.G.S. § 7B-1111.” In re Nesbitt, 147 N.C. App. 349 (2001). ”[E]ven if it were shown, …that a particular couple desirous of adopting a child would best provide for the child’s welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately.” What is UnFit?

  11. Actions of Putative Fathers Actions of Co-Respondent Voluntary Relinquishment of Custody Creation of Parent-Like Relationship with a Non-Biological Person What are Actions Inconsistent with Protected Status as a Parent?

  12. FATHERS • In re Byrd, 354 N.C. 188 (2001). • In re A.C.V., 203 N.C. App. 473 (2010). • In re Adoption of K.A.R., 205 N.C. App. 611(2010).

  13. Actions of Co-Respondent • In re J.A.G, 172 N.C. App. 708 (2005). • In re B.G.,191 N.C. App. 399 (2008). (unpublished) • In re B.G. (2)197 N.C. App. 570 (2009).

  14. Voluntary Relinquishment of Custody • Brewer v. Brewer, 139 N.C. App. 222 (2000). • Sides v. Ikner, 730 S.E.2d 844 (N.C. Ct. App. 2012).

  15. Creation of Parent-Like Relationship with a Non-Biological Person • Mason v. Dwinnell, 190 N.C. App. 209 (2008).

  16. The Fourth Amendment • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

  17. Fourth Amendment Cases • Federal – Camreta v. Greene, 588 F.3d 1011 (9th Cir. 2009), vacated and remanded on other grounds by 131 S. Ct. 2020 (2011). • Gates v. Texas Dept. of Protective and Regulatory Services, 537 F.3d 404 (5th Cir. 2008) • State – In re: Stumbo, 143 N.C. App. 375 (2001), reversed on other grounds by 357 N.C. 279 (2003).

  18. "Procedural due process generally requires that the state provide a person with notice and an opportunity to be heard before depriving that person of a property or liberty interest." Warren v. City of Athens, 411 F.3d 697, 708 (6th Cir. 2005). Procedural Due Process

  19. Due Process Requirements • Right to Receive Notice of Proceedings • Right to Participate in Hearings • Right to an Appropriate Standard of Proof in Hearings

  20. Kinship Care in In-Home Services Cases • Are they truly voluntary? • Can DSS require parents to place children outside the home without a court order? • How long can the placement last without a hearing? • At what point does this placement become coercive? • Does DSS have the legal right to remove?

  21. Behind the Scenes at DSS The Activities Leading Up to Filing a Petition Angie Stephenson Child Welfare Attorney Attorney General Office

  22. The Report(G.S. 7B-301, 7B-309) • Everyone in North Carolina is a mandated reporter • Reports can be anonymous • Reports made in good faith provide immunity • Reports made to the County DSS where the juvenile resides or is found.

  23. The Report(DHHS/DSS Family Services Policy Manual) • All reports to DSS are either screened in or screened out. • Screening decision is made by the intake social worker and a supervisor • Allegations screened in only when, if true, they meet the definition of abuse, neglect, or dependency

  24. Assessment(G.S. 7B-302) • Family Assessment • A family-centered approach to assessment that allows more flexibility in terms of initiation, interviews with child and family, and other aspects. • Investigative Assessment • A more traditional investigation, required in certain cases, and follows a more rigid protocol

  25. The DSS Assessment Tools(DHHS/DSS Family Services Policy Manual) • Risk Assessment (DSS-5230) • Assessment of Strengths and Needs (DSS 5229) • Initial Case Decision (DSS-5228)

  26. Obtaining Necessary Information(G.S. 7B-302(e)) • Director may consult with any public or private agencies or individuals, who shall assist in assessment • Director may make a written demand for information that is relevant, in director’s opinion (even confidential) • Public or private agency or individual shall provide access and copies

  27. Obstruction/Interference Petition(G.S. 7B-303; AOC-J-120) • 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 interview juvenile in private • Refusing to allow the director access to confidential information • Refusing to allow the director to arrange for an evaluation • Other conduct that makes assessment impossible

  28. Filing a Petition • Without Nonsecure Custody – G.S. 7B-302(c) • …”If the parent, guardian custodian, or caretaker refuses to accept the protective servcies 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…” • With Nonsecure Custody - G.S. 7B-302(d),7B-503 & 7B-505 • Reasonable Factual Basis to believe the matters alleged are true • One of six grounds for NSC exists

  29. Observations Facts CASE RECORD Quotes Documents Precise PETITION Behavioral Specific Provable

  30. ELEMENTS OF A PETITION • Identifying Information • Plain & Concise Allegations of Fact • Neglect, Abuse, Dependency (harm, severity, & risk) • Connection to Parental Behavior • Willingness and/or Ability to Protect • Refusal of Services • Reasonable Efforts

  31. Grounds for Nonsecure Custody(G.S. 7B-503) • Juvenile has been abandoned • Juvenile has suffered physical injury or sexual abuse • Juvenile exposed to substantial risk of physical or sexual abuse & parent has created the conditions likely to cause injury • Juvenile in need of medical treatment and parent will not provide it • Parent consents • Juvenile is a runaway and consents

  32. Forms • Petition (AOC-J-130) • Nonsecure Custody Order (AOC-J-150) • Summons and Notice of Hearing (AOC-J-142) • Affidavit as to Status of Minor Child (AOC-CV-609) • * Service of Process must be according to Rule 4(j). See G.S. 7B-407

  33. Contact Information • Angie Stephenson • (919) 334-1141 • angie.stephenson@dhhs.nc.gov • Wendy Sotolongo • (919) 354-7230 • wendy.c.sotolongo@nccourts.org • Deana Fleming • (919) 890-1322 • deana.k.fleming@nccourts.org

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