Chapter VIII:Protective Services 1404 - LEGAL BASIS

IV. Legal Authority

A. Legal Authority and Role of the County Director of Social Services (N.C.G.S.§ 7B-302)

County directors of social services are responsible for ensuring that child protective services are provided for all children who are abused, neglected, or dependent. The director and staff should have a clear understanding of the legal authority for providing services to voluntary and involuntary clients.

North Carolina law and administrative rule require the county director of social services to be responsible for:

1.) Receiving reports of abuse, neglect, and dependency;

2.) Making a prompt and thorough CPS assessment, using either the family Assessment response, or the Investigative Assessment response in order to ascertain the facts of the case, the extent of the injury or condition resulting from abuse, neglect, or dependency, and the risk of harm to the child, in order to determine whether protective services should be provided and/or a petition should be filed;

3.) Deciding whether or not immediate removal of the child or children is necessary for their safety and protection;

4.) Providing or arranging for protective services if immediate removal is not necessary; and

5.) Signing a petition seeking to invoke the jurisdiction of the court for the protection of the child or children in accordance with N.C.G.S.§ 7B-403 if the parent or other caretaker refuses to accept the protective services provided or arranged by the Director.

6.) Reporting to the District Attorney and local Law Enforcement if there is evidence of child abuse or whenever a child has been physically harmed in violation of any criminal statute by any person other than the child's parent, guardian, custodian or caretaker.

B. Legal Authority and Role of Guardian ad Litem [GAL] (N.C.G.S.§ 7B-601 and 7B-602)

In all petitions of abuse or neglect, the judge appoints a guardian ad litem to represent the child until permanence is achieved or until the judge relieves the GAL. In dependency cases, the appointment of a guardian ad litem is optional. N.C.G.S § 7b-602(b) and (c) states that a Guardian ad Litem will be appointed to the parent for the following reasons:

• A parent who is under the age of 18 years and who is not married or otherwise emancipated. The appointment of a guardian ad litem under this subsection shall not affect the minor parent's entitlement to a guardian ad litem pursuant to N.C.G.S.§ 7B-601 in the event that the minor parent is the subject of a separate juvenile petition.

• On motion of any party or on the court's own motion, the court may appoint a guardian ad litem for a parent in accordance with G.S. 1A-1, Rule 17, if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest. The parent's counsel shall not be appointed to serve as the guardian ad litem.

The duties of the guardian ad litem are to:

• Conduct an investigation to determine the facts, the needs of the child, and available resources within the family and community to meet those needs;

• Facilitate, when appropriate, the settlement of disputed issues;

• Offer evidence and examine witnesses at adjudicatory hearings;

• Explore options with the judge at the dispositional hearing;

• Conduct follow up investigations to insure that the court orders are being followed;

• Report to the court when needs of the juvenile are not being met; and

• Protect and promote the best interest of the child until formally relieved of responsibility by the court.

The appointed guardian ad litem has standing to represent the juvenile before the court, whether or not he or she is trained as an attorney. In this capacity, the guardian ad litem is responsible for:

• Performing necessary and appropriate legal services on the child's behalf;

• Presenting relevant facts to the judge at the adjudicatory hearing; and

• Appealing, when advisable, an adjudication or order of disposition to the Court of Appeals.

The guardian ad litem has the authority to access any information or reports that may, in the guardian ad litem's opinion, be relevant to the case. No privilege, except the attorney/client privilege, may be invoked to prevent the guardian ad litem and the court from obtaining such information. The attorney/client privilege allows an attorney to withhold any information obtained from their client relative to the abuse, neglect, or dependency case. The guardian ad litem is subject to the provisions of confidentiality and shall not make disclosure of information to anyone except by order of the judge, or unless otherwise provided by law in Chapter 7B of the General Statutes. (N.C.G.S.§ 7B-601).

The guardian ad litem may rely heavily on information obtained from the Department of Social Services. In order to promote the best interests of the child, the social worker will need to work closely with the guardian ad litem and any attorney employed by the guardian ad litem or appointed by the court.

C. Legal Authority and Role of District Attorney's Office (N.C.G.S. § 7B-306 and 7B-307)

The district attorney has the responsibility to review the director's determination that a petition should not be filed within twenty (20) days after the person making the report is notified. This review is made only upon request of the reporter. The review shall include conferences with the person making the report, the CPS social worker, the juvenile, if practicable, and other persons known to have pertinent information about the juvenile or the juvenile's family. At the conclusion of this conference, the district attorney may affirm the decision made by the director, may request the appropriate local law enforcement agency to investigate the allegations, or may direct the director to file a petition.

Whenever evidence of abuse is found, DSS must immediately make a verbal and a written report of their findings and submit it to the district attorney's office where it will be determined if criminal prosecution is appropriate.

District Attorney’s Role in Expunction Process

The responsible individual has 30 calendar days from receiving the Director’s notice of refusal to expunge, or from the date that the Director’s notice of refusal was due, to request in writing that the District Attorney, of the prosecutorial district in which the abuse or serious neglect report arose, review the Director’s refusal to expunge. The Director shall provide the District Attorney or his designee all of the information the Director used in reviewing the case decision. Within 30 calendar days of the responsible individual’s request, the District Attorney or his designee shall make a determination of agreement or disagreement with the Director’s decision. See Section 1427 of this manual for more detail on how to proceed after the District Attorney has made his determination.

D. Legal Authority and Role of Law Enforcement (N.C.G.S.§ 7B-307 and 7B-500).

Law enforcement officers are required by law to report suspected child abuse, neglect, and dependency cases to the county Department of Social Services. Likewise, if the DSS finds evidence that a juvenile may have been abused as defined by N.C.G.S.§ 7B-101, or that a juvenile may have been physically harmed in violation of any criminal statute by any person other than the juvenile's parent, guardian, custodian or caretaker, the director shall make an immediate oral and subsequent written report to the district attorney or the district attorney's designee and to the appropriate law enforcement agency within 48 hours after receipt of the information.

Within forty-eight (48) hours after receipt of the child abuse report, the local law enforcement agency is responsible for initiating and coordinating a criminal investigation with the protective services CPS assessment being conducted by the county Department of Social Services. If the perpetrator is not a parent, guardian or caretaker, local law enforcement shall initiate a criminal investigation immediately or within 48 hours. Upon completion of the criminal investigation, the district attorney determines whether criminal prosecution is appropriate and may request the Director or Director's designee to appear before a magistrate.

Law enforcement also has been given the authority in the statutes to take children into temporary custody without a court order if there are reasonable grounds to believe that the child is abused, neglected, or dependent, and that he or she would be injured or could not be taken into custody if it were first necessary to obtain a court order. In such situations, the county director should take appropriate action to initiate a CPS assessment [N.C.G.S.§ 7B-500].

With the passage of the Infant Homicide Prevention Act, law enforcement will be required to assist county departments of social services with their investigation of abandoned children by inquiring through the NC Center for Missing Persons and other resources to determine if these children have been reported as a missing person.

E. Special Authority and Role of Medical Professionals in Abuse Cases (N.C.G.S.§ 7B-308).

All medical professionals are required by law to report suspected child abuse, neglect, or dependency to the county Department of Social Services. The doctor/patient privilege does not relieve medical professionals of this duty to report.

Medical professionals are authorized to hold a suspected victim of child abuse in a medical facility for up to twelve hours for treatment. The special authority of medical professionals in abuse cases is intended as an addition to the customary method of reporting suspected child abuse. Nothing described in the emergency process precludes a physician or administrator from following the usual procedures of reporting suspected abuse directly to the county Department of Social Services and the county department from responding to the report in the usual fashion.

Any physician or administrator of a medical facility may obtain authorization from the chief district court judge or his designee to retain physical custody of a child suspected of being abused. The physician or administrator obtains authorization by contacting the judge or his designee by phone, or in person, and by certifying that, on the basis of his medical evaluation, the child is in need of medical treatment to cure or alleviate physical distress, or to prevent the juvenile from being abused, but the parent, guardian, custodian, or caretaker cannot be reached or has refused consent for treatment.

The certification must:

• Be in writing,

• Be signed by the examining physician, and

• Include the time and date authority was given by the judge or his designee to hold the child.

A copy of the certification should be:

• Given to the child's parent or caretaker,

• Attached to the child's medical records, and

• Attached to the child's legal records.

Custody is retained in the medical facility for a maximum of twelve hours from the time of authorization. The physician, administrator, or designee must notify the county director of social services in the county where the facility is located immediately after authorization is obtained.

The county director must treat this notification as a report of suspected abuse, neglect, or dependency and immediately begin a CPS assessment. A juvenile petition alleging abuse, neglect, or dependency and seeking non-secure custody must be filed by the county director during this twelve hour period if the assessment reveals all of the following conditions are met:

• The examining physician believes the child needs medical treatment to cure or alleviate physical distress or to prevent the child from suffering serious physical injury, and

• The examining physician believes the child should remain in the custody of the facility for twelve hours for the medical treatment identified above in (1), but,

• The child's parent or caretaker cannot be reached or refuses to allow treatment within the facility.

If a petition for non-secure custody is filed and custody is granted, a hearing is held within seven calendar days to determine the need for continued custody. Even though all three conditions may not be met, the county director may find that circumstances require a petition for non-secure custody either during the initial twelve hours or later. The county department will conduct the CPS assessment and provide services regardless of the decision concerning a petition. The county director and examining physician together may request voluntary dismissal of the petition.

If a child is hospitalized in one county but resides in another, the court may transfer custody to the Department of Social Services in the county where the child resides. The CPS assessment and the provision of services to the family should be coordinated with the county of residence.

If the court determines that the medical treatment provided was necessary and appropriate, the costs may be charged to the parents, guardian, custodian or caretaker or, if the parents are unable to pay, to the county of residence in accordance with N.C.G.S.§ 7B-903 and N.C.G.S. §7B-500).

F. Roles and Responsibilities of Multidisciplinary Teams

1.) Community Child Protection Teams (10 Page of 18Page of 18Page of 18NCAC 70A.0201 and N.C.G.S.§ 7B-1406 and 7B-1411):

The Community Child Protection Team is an interdisciplinary group of community representatives who have the responsibility for reviewing selected cases of abuse, neglect, and dependency, which have been reported to and/or substantiated or found to be In Need of Services by the county Department of Social Services. These reviews include child fatalities that resulted from confirmed or suspected abuse or neglect when there was a previous report or CPS intervention within the previous twelve months. Cases also are selected for review from other categories.

The purposes of these case reviews are to:

(a.)Identify gaps and deficiencies in community resources, which have impact on the incidence of abuse, neglect, or dependency;

(b) Advocate for system improvements and needed resources where gaps and deficiencies exist in the child protection system;

(c.) Promote collaboration between agencies in the creation or improvement of resources for children as a result of their review of selected cases; and

(d.) To inform the county commissioners about actions needed to prevent or ameliorate child abuse, neglect, or dependency.

Note: The CCPT's serves as the Citizens Review Panels which are required under the federal Child Abuse Prevention and Treatment Act. This act requires review of active cases.

More information on the Community Child Protection teams may be found in Section 1434.

2.) Child Fatality Prevention Team (N.C.G.S.§ 7B-1406 [b])

If the Community Child Protection Team determines that it will not review additional child fatalities, a separate Child Fatality Prevention Team shall be established in order to conduct those reviews. Each Child Fatality Prevention Team shall:

(a) Review the records of all cases of additional child fatalities;

(b) Submit a report to the board of county commissioners making recommendations and advocating for system improvements or needed resources where gaps and deficiencies exist; and

(c) Report their findings to the team Coordinator. Findings shall include a listing of problems identified with recommendations for improvement; changes resulting from the team's recommendations; information on each death reviewed; and any additional information requested by the team coordinator.

Most counties combine the function of the two teams. The Child Fatality Prevention Team requires a somewhat broader membership than does the Community Child Protection Team. When the teams are combined, the additional members join for the additional child fatality reviews.

3.) North Carolina Child Fatality Task Force (N.C.G.S. §7B-1402)

The Child Fatality Task Force is a 35 member multidisciplinary study commission established by legislature whose purpose is to study the causes of child deaths in North Carolina, and to recommend changes to law, rule, or policy that could improve the safety and well-being of children in the State. This team and its subcommittees serves as an advisory to the General Assembly and are active in planning for services, recommending changes in statutes, and approaching the issue of child protection from a preventative mode. The Task Force is also responsible for developing a system of multidisciplinary review of child deaths.

4.) North Carolina Child Fatality Prevention Team (N.C.G.S.§7B-1404 through N.C.G.S.§7B-1405):

The Child Fatality Prevention Team (formerly the Child Fatality Review Team) is established by statute. It is composed of professionals including eleven members, of whom nine members are ex officio and two are appointed. The ex officio members, other than the Chief Medical Examiner, may designate a representative from their departments, division, or offices to represent them on the State Team. These team members or representatives include: the Chief Medical Examiner; Attorney General; the Director of the Division of Social Services; the Director of the Division of the State Bureau of Investigations; the Director of the Division of Maternal and Child Health; the Superintendent of the Department of Public Instruction; the Director of the Division of Mental Health; Developmental Disabilities and Substance Abuse Services; the Director of the Administrative Office of the Courts; a pediatrician appointed to the Task Force, a public member appointed by the Governor; and the Team Coordinator.

The State Team, the local teams, and the Task Force shall have access to all medical records, hospital records, and records maintained by this State, any county, or any local agency as necessary to carry out the purposes of the law. Meetings are not subject to the Open Meetings laws, although teams are encouraged to have public information meetings. All otherwise confidential information and records acquired by the team are confidential and are not subject to discovery or introduction into evidence in any proceedings.

For information on the State Child Fatality Review protocol, refer to Children’s Services Manual Volume 1, Chapter VIII, Section 1432.