Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, April 13, 2013

Guest Post by King: Incarcerated Parents in Department of Social Services Court

By Brian King, King Law Offices

In our years working with the Department of Social Services, both as an attorney for the Department and representing parents, we have often had respondent parents whom have found themselves incarcerated.

In these types of cases, the situation is dire but not impossible. The key is to make reasonable arrangements for child care while in prison. A parent in this situation must make reasonable efforts while incarcerated to protect their constitutionally protected status as a parent.

In In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005), the Court held, “N.C. Gen.Stat. § 7B–101(9) (2009) defines a “[d]ependent juvenile” as “[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” In determining whether a juvenile is dependent, the trial court “must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.”

In In re L.H., 708 S.E.2d 191, (N.C.App., 2011), the Court held, “Respondent father does not dispute that he is unable to parent, but contends that the trial court erred in finding that DSS, and not he, placed Luke with the maternal grandmother. Respondent father further argues that, in any event, the trial court's finding that “neither parent has offered an alternative placement for the juvenile” is not sufficient to establish that he lacks an appropriate alternative child care arrangement. According to respondent father, whether DSS arranged the placement of Luke with his maternal grandmother “should not have a bearing on whether there was an appropriate, alternative child care arrangement.”

In re P.L.P., 618 S.E.2d 241 (NC, 2005) is the leading case on incarcerated parents. In that case, the court held that "Incarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision." In re Yocum, 158 N.C.App. 198, 207-08, 580 S.E.2d 399, 405 (2003). "The key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing." In re McDonald, 72 N.C.App. 234, 241, 324 S.E.2d 847, 851 (1984). Where "a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect[,] . . . because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible." In re Pierce, 146 N.C.App. 641, 651, 554 S.E.2d 25, 31 (2001). "The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984).

Essentially, the court has made it clear that the respondent parent who is incarcerated in the State of North Carolina can protect themselves, even in times where they are incarcerated. A parent should (and should be encouraged) to attend parenting classes while in the Department of Corrections, send letters to the children, and most importantly make arrangements for the care of the children. The arrangements for care must be made and present even if the child is in foster care.

Having an attorney that understands this important case law and argument is vital, as the Department of Social Services will often move to terminate the rights of parents in this situation. While difficult, a parent can prevail even in these circumstances.

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