In a previous blog post, I provided information for defenders on placement of youth in nonsecure custody with local department of social service agencies as either alternatives to secure custody or as a dispositional alternative. Due to changes in the statutes and with the assistance of Sara DePasquale, the post has been updated with relevant changes highlighted below. Thanks to Sara DePasquale and Jacquelyn Greene with the School of Government for their assistance!
As defenders, it is difficult to find your client in a situation where consideration is given to placement in the custody of the county department of social services. However, there may be certain situations that lead to DSS involvement from a matter that began as a delinquency petition. Perhaps your client is in secure custody and nonsecure custody is a reasonable alternative to secure custody; or the presiding judge orders placement in DSS custody as a dispositional alternative after reviewing the predisposition report. The procedure to follow in the event of your client’s placement in DSS custody arising from a delinquency matter depends upon the timing. Was placement made predisposition as an alternative to secure custody or as a dispositional alternative?
Pre-disposition, N.C.G.S. 7B-1903(a) states that “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 (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 juvenile’s best interests to be placed in nonsecure custody.” N.C.G.S. 7B-1905(a) reiterates that a youth meeting the criteria for secure custody may be placed in nonsecure custody with the department of social services for the specific county. Defenders should discuss this alternative to secure custody with their client and determine the client’s wishes. In this situation, the court is required to first consider placement with a parent, guardian, custodian, or other responsible adult prior to placement in nonsecure custody.
Pre-disposition placements do not include a requirement for notice to the director of the department of social services in the specific county. An initial hearing on the merits must be scheduled within 7 calendar days to determine the need for continued nonsecure custody. This initial hearing cannot be continued or waived. A subsequent hearing shall be held within 7 business days. Hearings thereafter occur at intervals of no more than 30 calendar days and may only be waived with the consent of the juvenile. The court is required to enter findings regarding the evidence relied upon in reaching its decision and the purpose which continued nonsecure custody is to achieve. The criteria that is applied is specified in G.S. 7B-1903.
At disposition, if the director of social services has received notice and an opportunity to be heard, the court may place a youth adjudicated as a delinquent in the custody of the department of social services as a dispositional alternative under N.C.G.S. 7B-2506(c)(1). In this event, the court is required to make a finding that continuation in the juvenile’s own home is contrary to the juvenile’s best interests. Unless waived, the parents are entitled to appointment of an attorney under N.C.G.S. 7B-2506 once the disposition has been ordered.
In the event of placement in DSS custody as a dispositional alternative, placement shall be reviewed in accordance with N.C.G.S. 7B-906.1. When custody is removed from a parent, as it would be in this case, the next scheduled hearing is a permanency planning hearing. The initial permanency planning hearing shall occur within 90 days. Note that the statute no longer requires a review hearing if custody is removed from a parent. Subsequent hearings would then occur within every six months. These permanency planning hearings that review the juvenile’s placement in the custody of a department of social services occur in the delinquency action. Think of it as a post-dispositional hearing that applies the required factors of G.S. 7B-906.1. For additional information on this topic, defenders may review this School of Government blog as well.
Defenders should discuss these issues carefully with clients to ensure understanding of the length of time they may remain out of their home. Attending review hearings is important as the youth IS NOT assigned a guardian ad litem or attorney advocate. The youth may also be called to testify as a witness in such hearings. Be aware of local practices involving nonsecure custody hearings and review hearings. These hearings may be scheduled to coincide with delinquency court or be moved to the docket/calendar for abuse/neglect/dependency court even though it is still the delinquency case. This may result in confusion for the client and parents/guardians/custodians about the time and location of all court dates. For additional information, questions, or concerns, please contact OJD and note the new web address of www.ncjuveniledefender.org.