Few things are as concerning as having a stranger show up at your door demanding access to your home, children, and personal information. For people unfamiliar with the process, or for those who may be dealing with a Department of Social Services encounter for the first time, I hope this survey of your rights will at least shed some light on an otherwise shrouded process. At the outset, however, you should immediately begin to take this process seriously, regardless of whether you feel the claims against you are merited. DSS has sweeping authority, and you should absolutely speak to an attorney as soon after interacting with the agency as possible. Over the next several weeks we’ll be blogging about your rights, how to handle DSS if and when they arrive at your door, and what actions you should take if DSS begins an investigation the safety and welfare of the child when in your custody.
Protection of the Parent-Child Relationship
Although it probably doesn’t feel like it when a stranger swoops in and takes your child, DSS has a duty to protect the parent-child relationship. The Juvenile Code, which provides the basis for DSS intervention, specifically states that the purpose of the Code is to “provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents.” [G.S. 7B-100(1)]. Prior to a Court Order terminating parental rights, DSS should be working to protect the relationship between you and your child. That means that you should be named as a necessary party to any legal proceeding taking place, with the only exception being ex-parte actions—where an individual or agency tries to convince the Court that circumstances in light most favorable to the petitioner are so dire that the court should temporarily order a removal or change of custody without giving you a chance to state your side of the story. Although this may seem like a violation of your constitutional right to procedural due process, both the Supreme Court of the United States and North Carolina case law support the validity of such proceedings. Where a child’s interest in being protected from abuse and neglect is weighed against parental rights to procedural due process, the Court will almost always grant an ex-parte order so as to protect the interest of the child. The basis for this was most recently stated in Owenby v. Young, 357 N.C.142, 145 (2003), which states “The justification for the [parent’s] paramount status is eviscerated when a parent’s conduct is inconsistent with the presumption” that the parent is acting in the best interest of the child.
Only as a last resort should DSS seek to terminate parental rights. Terminating rights is the most severe—and most permanent—form of state intervention that DSS may use to protect the interests of the child. DSS has an obligation from the initial contact with you to work towards reunification with you and the child. If you feel that they have not—or are not—doing so, you should contact an attorney immediately.
Notice and Opportunity to be Heard
As a party to the juvenile proceeding, you are ENTITLED to procedural due process, proper service of process (being summoned to Court), notices of all legal proceedings involving the child, and fair, unbiased verdicts from the Judge. Further, you have the right to meaningful participation in the proceedings against you. You’ve probably heard at some point in your life those famous words borne from Miranda v. Arizona, 384 U.S. 436 (1966): “You have the right to remain silent. Anything you say can and will be used against you in a Court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.” You should ABSOLUTELY retain an attorney or request that one be appointed to you prior to going in front of a Judge regarding your parental rights.
If a Court adjudicates that your child has been abused, neglected, or become dependent, you are stuck with that decision. The threshold for challenging such a finding is a “clear abuse of discretion”, and those claims are rarely successful. It is CRITICAL that you work with your attorney from the very beginning to prevent such a holding.
Once the child has been adjudicated abused, neglected, or dependent, the Court can-and often will- move to the disposition phase of the proceeding immediately. At disposition, the Judge must hear evidence relating to the child, including a consideration of the child’s needs, family and community resources available to meet those needs, the child’s best interests, the state’s objectives (i.e., a safe and permanent placement for the child within a reasonable period of time), and any alternatives that may be applicable by statute. Although you may feel that your child is doing just fine in your care and custody and that there are no threats to the child’s welfare, DSS WILL show up with evidence to the contrary. An attorney can analyze your situation and defend against the claims that the DSS attorneys will make regarding where YOUR child should be placed.
At the disposition hearing, the Court will determine who should have legal custody of the child, where the child should be placed or who should be authorized to make a placement decision, the services that the parent and child should receive (read as “the classes that mom/dad should have to take in order to be considered “fit” parents, and what evaluations the child should be subjected to, like a psychological evaluation, counseling, or therapy), whether or not a visitation schedule is appropriate, and the terms of that schedule, as well as the date of the next hearing.
Once that disposition is made, you are literally at the mercy of the Court. For the next calendar year, you will be required to appear in front of the Judge every 30 days for review hearings. It will be vital that you keep in constant contact with your attorney, and that you comply with whatever conditions the Judge orders. While DSS should theoretically be working towards reunification with between you and your child, they can—and will—use visitation as a tool to force you to comply with the hoops they want you to jump through. Although it may seem unfair, the Judge will almost always take DSS’s side, as DSS will have experts testify as to the wellbeing of the child. This may include social workers, psychologists, and any other relevant witnesses. Only a licensed attorney will understand how to properly discredit these witnesses and convince the Judge to believe you, rather than DSS.
What DSS “owes” you
Even though our discussion thus far probably seems pessimistic, DSS does OWE you a number of answers. The Department of Social Services is governed by the Child Protective Services Manual, which is a subsection of the Family Services Manual. That manual specifically states that both parents and care providers are entitled to information during the juvenile case. Those obligations to you include:
- That you be treated in a courteous and respectful manner.
- That you know DSS’s legal authority and right to intervene in cases of child abuse, neglect, or dependency.
- That you know the allegations of abuse, neglect, or dependency reported at the first contact with DSS.
- That you know any possible action which DSS may take, including petitioning the court to remove the child in order to ensure safety and protection.
- That you know DSS’s expectations of the parent/caregiver.
- That you know what services you can expect from DSS and other community agencies.
- That you have a family services case plan that is clearly stated, measurable, and specific, that includes time-limited goals, and is mutually developed by the DSS and the parent/caretaker.
DSS is obligated to work with you regarding the above list. If you feel as though DSS has not done so, you should immediately let your attorney know.
Right to an Attorney
You have the right to an attorney, and the right to have counsel appointed in the event that you are unable to afford one. You should know, however, that a court appointed attorney may not end up being “free”. In the event that the child is adjudicated abused, neglected, dependent, or that your rights are terminated, a Judge may—and will—order that you reimburse the State for the cost of your attorney. Because of the length of the proceedings and the amount of time your appointed counsel may spend on your case, you may be better off seeking private counsel. Minick Law Firm will work with you to establish a payment plan for your legal fees. You should seek a family law attorney that you resonate with, who has experience dealing with DSS in the county you are living in, and who believes in your case. Our firm will fight for your rights!
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Robert Gilligan was raised in Waynesville, NC, and joined the U.S. Air Force right out of high school. After being honorably discharged after 6 years, Robert attended Wayne State University Law School in Detroit, MI. Robert was highly involved in the University’s law student groups, being the Dean of the Delta Theta Phi chapter, Treasurer of the Environmental Law Society, President of the Law Student Veteran’s Organization, as well as a member of dozens of other agencies. Robert interned with the 3rd Circuit Court, Family Division, and later worked as an associate for a number of solo practitioners in the Metro-Detroit area practicing in areas of law ranging from Bankruptcy to criminal defense. In 2013, Robert relocated back to Waynesville, NC where he lives with his wife, Marissa, and daughter, Claire. Robert’s practice areas include family law, criminal defense, and estate planning.