Child Custody Affidavit in Texas - PowerPoint by yiq12320

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									Juvenile Law
North Carolina Juvenile Code
      G.S. Chapter 7B
       Subchapter I
     Federal and Uniform
     Acts and Compacts

1.   UCCJEA
2.   ICJ
3.   ICPC
4.   ICWA
5.   MEPA
      Federal and Uniform
      Acts and Compacts
1. Uniform Child Custody Jurisdiction
   and Enforcement Act
2. Interstate Compact on (for)
   Juveniles
3. Interstate Compact on the
   Placement of Children
4. Indian Child Welfare Act
5. Multi-Ethnic Placement Act
Sources of Child Welfare
Law and Policy
 • North Carolina Juvenile Code, G.S. Ch. 7B
 • State administrative rules
 • Policy manuals developed by state Division of
   Social Services
 • Appellate court decisions
 ……………………………………………………
   Federal funding criteria set out in federal
   statutes and regulations
How Have Child Welfare Philosophy
       and Law Evolved?
                Rescue


Prevent Placement and Reunify Families


Ensure Safety and Strive for Permanence
How Does the State Respond to Child Maltreatment?
    Criminal Justice System        Child Welfare System
•   Focus on offender          •   Focus on child
•   No reporting requirement   •   Mandatory reporting
•   Local law enforcement      •   County social services
    response                       response
•   Criminal court             •   Civil (juvenile) court
•   Outcome – conviction and   •   Outcome – adjudication
    punishment                     and protection
 When and how may the state intervene in
 families for the purpose of child protection?

 The Juvenile Code is North Carolina’s primary
 answer to that question.

• Harm
• Risk of harm
• Lack of minimally
  adequate care       Family
   Definitions in the Juvenile Code
  Set the Limits of State Intervention
“Juvenile”             “Abused Juvenile”
“Neglected Juvenile”   “Dependent Juvenile”
                           “Caretaker”
                           “Custodian”
Procedures set out in the Juvenile Code apply to
children who are harmed or placed at risk by the
actions, inaction, or incapability of the child’s
parent (or guardian, custodian, or caretaker).

They do not apply when harm or risk is created by
others – school teachers, strangers, church
officials.
    What Does Intervention Look Like?
           First, a person decides whether to
           make a report.



• Do I have cause to suspect that this child
  is an abused juvenile, a neglected
  juvenile, or a dependent juvenile, as the
  Juvenile Code defines those terms?
    The County DSS Screens the Report
               By Asking:
•    If the information given in the report is true, is
     the child an abused, neglected, or dependent
     juvenile, within the Juvenile Code definitions?
    If the Report is Accepted:
DSS conducts
– investigative assessment in response
  to reports of abuse or “serious
  neglect” (not yet defined)
– family assessment in response to
  reports of other neglect or
  dependency
     Information from Assessment

• If DSS finds abuse or “serious neglect”:
  name → Responsible Individual List
  (and Central Registry)
• If DSS finds “in need of services” or
  finds no abuse, neglect, dependency:
  information → Central Registry
          Access to Information
1. Information from Responsible Individual List
   may be released to:
  – providers of child care and foster care
  – adoption agencies, group homes, etc.
2. Information from Central Registry
  – used to identify repeated abuse of child or
     in family
  – otherwise is confidential
            Central Registry Collects
                 Reporting Data

On average, out of 100 reports:
• Number accepted for assessment . . . . . . . 60
• Number substantiated . . . . . . . . . . . . . . . .20
• Number of petitions filed . . . . . . . . . . . . . 2 or 3
  In most substantiated cases, DSS works with the
  family to address problems and ensure the child’s
  protection.
  Responsible Individuals List
When a person’s name is placed on the
Responsible Individuals List, appeal is
to:
    • DSS Director
    • (District Attorney)
    • District Court
    • Court of Appeals
     District Court Hearing on Petition
        to Expunge Name from List
•   Hearing must be closed at party’s request
•   No right to appointed counsel
•   DSS has burden of proof
•   Standard = preponderance of evidence
•   Rules of evidence (sort of) apply
•   Hearing is stayed if juvenile petition is filed
•   Order must be entered within 30 days
   Issue at Hearing to Expunge Name
• Correctness of DSS’s determination that
   substantial evidence supports
  1. determination of abuse or serious
     neglect, and
  2. identification of responsible individual
• Substantial Evidence = “Relevant
   evidence a reasonable mind would accept
   as adequate to support a conclusion”
  Obstruction of or Interference with
            Investigation
• Order can issue ex parte or after hearing
• Must determine whether
  – DSS received a report
    that requires investigation
  – Party obstructed or interfered
  – Party has a lawful excuse
      When DSS does file a petition:
•   Filing of petition after hours
•   Temporary Custody (some cases)
•   Nonsecure custody (some cases)
•   Service of process
•   Hearing on continued nonsecure custody
            Guardians ad Litem
•  Court must appoint guardian ad litem for child
   if abuse or neglect is alleged.
• Court may appoint guardian ad litem for a
   parent, per Rule 17, if the court finds
   reasonable basis to believe that the parent:
  1. is incompetent or has diminished capacity
      and
  2. cannot adequately act in
      his or her own interest.
     Provisional Counsel for Parent

• In every abuse, neglect, dependency case,
  summons or notice must show appointment
  of “provisional counsel” for parent
• At first hearing, court affirms the
  appointment unless the parent:
  1. Does not appear at the hearing,
  2. Is not indigent,
  3. Has retained counsel, or
  4. Waives the right to counsel.
              Adjudication
• Timing
• Discovery
• Findings required before closing hearing
• Continuances
• Jurisdiction
   – Subject Matter and Personal
• Recording
• Issues and Proof
• Orders
      The goal in every case
      is for the child to have
     a safe, permanent home
within a reasonable period of time.
       Goal may be accomplished by:
• keeping child in his own home that is safe
• removing child from his home and returning him
  home quickly, when it is safe
• adoption
• appointing a relative or other suitable person as
  child’s guardian.
• placing child in legal custody of a relative or
  other suitable person.
               Disposition
•   Purpose
•   Hearing
•   Alternatives
•   Orders
•   Contempt
        Review and Permanency
       Planning Review Hearings
•   Purposes
•   Timing
•   Participants
•   Issues
•   Orders
  When and How Does a Case “End”?
Jurisdiction continues until
1. Child is 18, married, or otherwise
   emancipated; or
2. Court terminates jurisdiction.


• New procedure permits entry of a Ch.
  50 order and termination of the juvenile
  case.
       PLEASE!!
Do not say that a case “is
        closed”.
   Termination of Parental Rights
• Starts as separate proceeding or by motion
  in the juvenile case.
• Petitioner must prove at least one ground,
  by clear and convincing evidence.
• Completely terminates parent’s rights and
  responsibilities in relation to child.
• Makes child eligible for adoption.
                  Facts

• Parents divorced in Texas in 2000 and
  Mom was awarded custody of child
• Mom and child moved to N.C. in 2002
• Mom files petition to terminate Dad’s
  rights so new husband can adopt
 Can N.C. exercise jurisdiction if:
1. Dad moved to N.C. in 2002 to be
   near the child?
2. Dad has lived in Hawaii since
   2002?
3. Dad still lives in Texas and visits
   here regularly?
       Subject Matter Jurisdiction
        Can this court act in this matter?
 Juvenile Code says
• district court has exclusive jurisdiction,
• to hear and determine any tpr motion or
   petition,
• relating to any juvenile who resides in, is
   found in, or is in the custody of a DSS or
   licensed child-placing agency in the district
• when the petition or motion is filed.
• Juvenile Code also says
   – TPR statute may not be used to
     circumvent the UCCJEA
   – Court must find it would have
     jurisdiction to make a child custody
     determination under G.S. 50A-201,
     -203, or -204.
• UCCJEA defines “child-custody
  proceeding” to include proceeding to
  terminate parental rights.
  Court should make findings to
 support a conclusion that it has:
• jurisdiction to enter an initial child-
  custody determination (50A-201), or
• jurisdiction to modify a child-custody
   determination (50A-203), or
• temporary emergency jurisdiction
  (50A-204)
  NC Has Jurisdiction to Modify
                    ONLY IF
 N.C. has jurisdiction to make initial child
 custody determination and
1. Other state’s court determines that
   a. it no longer has exclusive continuing
      jurisdiction or
   b. N.C. is more convenient forum; or
2. Court of either state determines that
   neither child, a parent, nor person acting
   as a parent presently resides in that state.
 Personal Jurisdiction
 Requires
 – statutory basis
 – notice
 – fairness

Is the “fairness” component satisfied in actions
to terminate rights of an out-of-state parent?
  Are Trueman, Finnican, & Dixon
          still good law?
• G.S. 50A-201(c): “Physical presence of,
  or personal jurisdiction over, a party or a
  child is not necessary or sufficient to
  make a child-custody determination.”
• Other state courts holding that
  termination proceedings are covered by
  “status” exception.
   Petition or Motion

• Both may be filed by any person with standing
• Both must contain information set out in G.S.
  7B-1104
• Both (probably) should have information or
  affidavit required by G.S. 50A-209
• They must be served on (almost) the same
  people
• Same time to respond
     PETITION              MOTION
• Requires summons     • Requires notice
• New file and file    • Part of existing
  number                 juvenile case
• New appointment of   • Counsel and GAL
  counsel and GAL
                         continue unless court
                         orders otherwise
                       • Respondent files
• Respondent files       Response
  Answer
           Service of Process
• Petition/summons require Rule 4 service
• Motion/notice: Rule 5 service okay unless
  – Person was not served originally with
    summons
  – Person was served by publication that did
    not include proper notice
  – Two years have elapsed since “original
    action”
  – The court orders Rule 4 service
         G.S. 1A-1, Rule 5

• Deliver to party
• Deliver to party’s attorney, leave at
  office with partner or employee, or send
  by confirmed fax
• Mail to party at last known address
• If no address is known, file it with clerk
  of court
        Service by Publication




   In re Pawley (N.C.App. 2/19/02)
             (Unpublished)
“Defect in service by publication is
 jurisdictional, rendering any judgment
 or order obtained thereby void.”
  Attempts to Serve Personally

Due Diligence: Petitioner must use all
resources reasonably available in
attempting to locate respondent.



Affidavit must set out circumstances
warranting use of service by publication.
     Rules of Civil Procedure


Apply in termination proceedings unless:
• Article 11 of Chapter 7B has different
  specific provisions, or
• Court of Appeals or Supreme Court
  has said a particular rule does not
  apply.
     Who May File Petition


• Straightforward list.
• Person may file adoption and
  termination petitions
  simultaneously. Adoption is stayed
  pending the termination action.
• When is DSS “required” to file?
 Hearing: Unknown Parent


• Within 10 days of filing of petition (or at next
  term of court)
• Court may order investigation and appoint
  guardian ad litem
• Court either makes findings about identity or
  orders service on unknown parent
   Hearing To Determine Issues
• Only if answer is filed
• Petitioner/respondent must give at least
  10 and not more than 30 days notice
• Described only as special hearing to
  determine the issues raised by the
  petition or motion and answer or
  response
 Adjudication Hearing

• Within 90 days after petition filed (unless
  court orders otherwise)
• Continuance past 90 days requires
  written order
• Court must inquire of parent re counsel
• Must have some hearing even if no
  answer is filed and party doesn’t appear
 Issues at Adjudication

• Judge’s familiarity with case does not
  require recusal
• Malfunction of recording equipment will
  require parties to reconstruct the record
  if case is appealed
• Parent’s right to be present
  is not absolute
    Key Points about Grounds
1. Parent has abused or neglected the
   child.
2. Parent has willfully left child in foster
   care for more than 12 months without
   showing to satisfaction of the court
   that parent has made reasonable
   progress in correcting conditions that
   led to the child’s removal.
    Key Points about Grounds
3. Willful failure to pay reasonable
   portion of cost of care of child in
   foster care or other out-of-home
   placement – 6 months before petition
4. Willful failure to pay support
   pursuant to a court order or custody
   agreement – 1 year before petition
      Key Points about Grounds
5. Before filing of petition or motion, father
   of child born out of wedlock has not
  a. Established paternity judicially or by
     affidavit filed with DHHS, or
  b. Filed a petition for legitimation, or
  c. Legitimated the child by marrying the
     mother, or
  d. Provided substantial support or consistent
     care with respect to the child and mother.
      Key Points about Grounds
6. Parent is incapable of providing
   proper care and supervision –
  a. Child is dependent: Parent
     1) is not able to provide proper care and
     2) has not made suitable alternative
        arrangement
  b. There is reasonable probability that
     parent’s incapability will last for
     foreseeable future
      Key Points about Grounds
7. Parent has willfully abandoned the
   child
  a. For 6 months immediately before filing
     of petition or motion, or
  b. For 60 days, after voluntarily abandoning
     the child under G.S. 7B-500 (“Safe
     Surrender” statute) immediately before
     filing of petition or motion
      Key Points about Grounds
8. Parent has committed one of several
   specified criminal offenses
9. A court has terminated the parent’s
   rights to another child, and parent is
   not able or willing to establish a safe
   home.
           Adjudication Order
• Order must state the “clear, cogent,
  and convincing”standard
• Findings should
  1.   Be specific and complete
  2.   Relate to the evidence
  3.   Avoid reciting evidence
  4.   Incorporate sparingly
  5.   Support the ground
       Disposition


• Statute lists factors court must consider
• Establishment of ground never requires
  termination
• Whether to terminate is in court’s
  discretion
• No burden of proof
Writing Good Court Orders
           Key Questions
1. Subject Matter Jurisdiction
  – UCCJEA
  – In tpr, child in the state when
    petition filed
  – Petitioner has standing
     2. Personal Jurisdiction
• Service of process
• “Diligent efforts” if by publication
• “Minimum contacts” if
   *tpr
    *out-of-state parent
    *of legitimate child
      (or involved parent)
3. Evidence Supports Findings

Each finding supported by
–Competent evidence
–In the record
4. Findings Support Conclusion:
  – Child is abused or neglected
  – A ground for tpr exists
  – Disposition is in child’s best
    interest
    5. Legal Authority

–In re Brownlee (1981)
–In re Doe (1991)
–In re Autry (1995)
–In re Cogdill (2000)
     6. Exercise of Discretion

Has the court exercised discretion
in a reasoned (not arbitrary) way?
  See In re J.A.O. ( N.C. App., 9/7/04)
       Other Questions
1. What statute applies?
2. Have all statutory requirements
   about contents been satisfied?
3. Will the parties understand?
            Entry of Order
1.   Preparation
2.   Rule 58: signed & filed with clerk
3.   Timing (30-day rule)
4.   Service on parties
5.   Distribution
6.   Local rules
           Suggestions
•   Beginning
•   Structuring
•   Incorporation by reference
•   Specificity
•   Ending

								
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