On the Civil SideS.L. 2023-106: Parents’ Rights, Who Is a Parent, and Juvenile Abuse, Neglect, and Dependency Cases

On August 16^th, the legislature used an override of the Governor’s veto to pass S.L. 2023-106 (S49), a law enumerating the rights of parents regarding their children’s education, health care, and mental health needs. But in addressing a parent’s rights, the law contains some exceptions when the child is alleged to be abused, neglected, or dependent. Notably, the new law defines “parent” as “any person with legal custody of a child, including a natural or adoptive parent or legal guardian.” In cases where a department of social services (DSS) has filed a petition alleging a juvenile is abused, neglected, or dependent, DSS may obtain custody of the juvenile, or the court may ultimately award legal custody or guardianship to a person who is not the juvenile’s parent. As a result, the new law impacts abuse, neglect, and dependency cases. This post discusses the new law as it relates to abuse, neglect, and dependency cases only and is not a comprehensive discussion of the new law generally.

Overview of S.L. 2023-106

There are three parts to S.L. 2023-106, two of which are the focus of this post.

• Part I of the law, “Parents’ Bill of Rights,” creates a new Chapter in the General Statutes, Chapter 114A, and became effective on August 15, 2023.
• Part II of the law focuses on educational issues by creating a new Article 7B to the state’s education laws in G.S. Chapter 115C and amending other educational statutes. Part II became effective at the beginning of this school year (2023-2024).
• Part III of the law enacts new statutes in G.S. Chapter 90 that address parental consent for medical treatment of a minor and is not effective until December 1, 2023. (To learn about Part III of the law, see my colleague’s blog post here).

Who is a “parent”?

Parts I and II of S.L. 2023-106 define a “parent” as “[a] person who has legal custody of a child, including a natural parent, adoptive parent, or legal guardian.” G.S. 114A-1(5); 115C-76.1(5). Legal custody or guardianship is granted by a court order. The expanded definition of parent gives legal custodians and guardians newly enumerated rights as set forth in S.L. 2023-106. Because the definition focuses on legal custody, a natural or adoptive parent who does not have legal custody of their child does not have these rights. For example, if there is a court order awarding legal custody or guardianship to another individual (e.g., a grandparent), that individual is the “parent,” and the natural or adoptive parent is not for purposes of this new law.

Also under Parts I and II of the law, a “child” is defined as a person under 18 years old who is not emancipated by marriage or court order. G.S. 114A-1(2); 115C-76.1(2).

Is DSS a parent? Often in an abuse, neglect, or dependency action, DSS seeks a court order awarding it custody of the juvenile. See G.S. 7B-504 and -506 (nonsecure custody); 7B-903(a)(6) (dispositional alternatives after adjudication). When legal custody of the juvenile is ordered to DSS, DSS has the right to make decisions regarding the child, including issues related to the child’s placement and matters that are generally made by the child’s custodian. See G.S. 7B-507(a)(4); 7B-903.1(a). A DSS is a county’s child welfare agency. G.S. 7B-101(8a). The legislature did not include in the definition of “parent” an agency with legal custody but rather referred to “a person” with legal custody of a child. However, rules for statutory construction state that “the word ‘person’ shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary.” G.S. 12-3(6). There is nothing about the context that indicates a county DSS with a court order of custody is not a “person” with legal custody making it a “parent” with the rights provided for in S.L. 2023-106.

When legal custody is ordered to DSS, there is no other legal custodian or guardian for the child. The effect of interpreting the definition of “parent” to not include a county DSS with legal custody would be to leave that child without a “parent” who can exercise the rights provided for in S.L. 2023-106. This would be an absurd result given that there is not an exception carved out for any category of children, let alone children who are often considered one of the most vulnerable populations in our state – those that are abused, neglected, or dependent. See In the Matter of Brake, 347 N.C. 339 (1997) (in construing a statute, presumption that legislature acted with reason and common sense and did not intend an absurd result). Finally, although DSS obtains custody, it is the DSS director, who is of course a person, who acts on behalf of the department and the child. See, e.g., G.S. 108A-14(a)(6), (11), (12), (13); 7B-300; 7B-401.1; 7B-903.1.

Part I: The Parents’ Bill of Rights

The Parents’ Bill of Rights is set forth at the new G.S. 114A-10 and enumerates ten specific rights of a parent, which include

• directing the child’s education;
• directing the child’s moral or religious training;
• enrolling the child in a school the child is eligible by law to attend in compliance with compulsory attendance laws;
• accessing and reviewing the child’s educational records, which is authorized by the federal Family Educational Rights and Privacy Act (FERPA) (for more information about FERPA and its application in abuse, neglect, and dependency cases, see Chapter 14, section 14.5 of the Abuse, Neglect, Dependency, and TPR Manual);
• making health care decisions for the child unless otherwise provided for by law;
• accessing and reviewing the child’s medical records as authorized by HIPAA and not otherwise prohibited by law;
• prohibiting the creation, sharing, or storage of the child’s biometric scan without prior written parental consent unless ordered by a court or required by law (e.g., fingerprinting, photographing, and collecting DNA samples when the criteria are met under the juvenile delinquency laws is still permitted);
• prohibiting the creation, sharing, or storage of the child’s blood or DNA without prior written parental consent unless ordered by a court or required by law (e.g., DNA samples when a juvenile is alleged to commit certain crimes and the delinquency case is transferred to superior court is still permitted);
• prohibiting the creation of a video or voice recording of the child without a parent’s prior written consent unless certain exceptions apply, including court recordings, security surveillance, and certain school activities; and
• being promptly notified if a state employee suspects the child has been a victim of a crime unless an exception applies. Under this new law, a “state employee” includes an employee of the state, a political subdivision of the state (e.g., a county or municipality), or any public school unit. SeeS. 114A-1(6).

There are exceptions set out in the Parents’ Bill of Rights that are specifically related to abuse, neglect, or dependency cases (and criminal, delinquency, and undisciplined cases as well).

• When the child is the subject of a DSS assessment for abuse, neglect, or dependency, a video or voice recording of the child may be made without prior written parental consent. G.S. 114A-10(9)b.
• When the parent is the subject of an assessment of abuse, neglect, or dependency and DSS requests that medical records for the child not be provided to the parent, the parent does not have a right to access the child’s medical records. G.S. 114A-10(6)a.2.
• If a state employee (which includes employees of a political subdivision of the state and public school units) who suspects the child is a victim of a crime has made a report to law enforcement or DSS and notifying the parent of the employee’s suspicions would impede DSS’s or law enforcement’s assessment, the parent does not have a right to be promptly notified. G.S. 114A-10(10).

This last right regarding prompt notification to the parent that a state employee (which includes employees of a political subdivision of the state and public school units) suspects the child is a victim of a crime raises some questions regarding a report to DSS if the crime also constitutes abuse, neglect, or dependency as defined in the Juvenile Code (G.S. Chapter 7B). See G.S. 7B-101(1), (9), and (15) (defining “abused juvenile”, “dependent juvenile”, and “neglected juvenile”). Any individual, including a state employee, who has cause to suspect a child is abused, neglected, or dependent must make a report to the county DSS where the child resides or is found. G.S. 7B-301(a). A state employee is obligated to make a report to DSS when the crime it suspects the child is a victim of also constitutes juvenile abuse, neglect, or dependency. Unless the exception (discussed below) applies, the parent is entitled to prompt notification that the state employee suspects the child is a victim of a crime. The statute does not specify who must promptly notify the parent, how notice is to be provided, or what must be included in the notice. DSS must keep any information it receives in an abuse, neglect, or dependency case in “strictest confidence” and may not disclose the identity of a reporter absent a court order. G.S. 7B-302(a1); (a1)(1a), (a3); 7B-303(e); 7B-700(a). As a result, one can presume that the obligation to notify the parent is on the state employee who suspects that a criminal offense has been committed. The state employee is not obligated to inform the parent they made a report to DSS. Upon receiving notification of the child’s suspected victimization of a crime, it is likely the parent will conclude that the state employee made the report to DSS.

One exception to notifying the parent exists: when a report is made to DSS or law enforcement and notice to the parent would impede either agency’s investigation. The law does not specify who makes the determination that notice to the parent would impede an investigation – the state employee who is the reporter or the agency who received the report. If a state employee has reported the suspected crime to DSS, it is presumably because the employee suspects the child is abused, neglected, or dependent. Juvenile abuse, neglect, and dependency result from circumstances created by the juvenile’s parent, guardian, custodian, or caretaker (except for a minor victim of human trafficking, who is abused and neglected regardless of who created the circumstances). Accordingly, when a state employee suspects the child is a victim of a crime that also constitutes abuse, neglect, or dependency, it is reasonable for that employee to believe that promptly notifying the “parent” of such a crime would impede a DSS investigation, since the parent would likely be notified by the state employee before any investigation was commenced by DSS and/or law enforcement. In other words, the state employee’s prompt notification to the parent in such a circumstance would “tip off” the parent to the fact that they may be under investigation for a crime, which may include the juvenile’s abuse, neglect, or dependency, they are suspected of committing against their child. That notification may hamper the investigation and potentially endanger the child at issue.

There are instances where some of the rights established in the new G.S. 114A-10 will be superseded by federal law. For example, a parent has a right to enroll the child in a school the child is eligible to attend, but if the child has been removed from their home and is placed in DSS custody, the federal Every Student Succeeds Act (ESSA) and Fostering Connections Act apply. These two federal laws require child welfare agencies and public school districts to work together to ensure a child’s educational stability when a child is removed from their home. The laws require the child to remain in the school they were attending at the time of their removal when it is in the child’s best interests to do so. A best interests determination is made in a Child and Family Team meeting, which the parent has a right to attend and participate in. Ultimately, DSS and/or the court hearing the abuse, neglect, or dependency case will make the determination if consensus cannot be reached. If the child must transfer schools, their enrollment must be immediate, even if the child’s educational records are not available, to avoid a gap in schooling. For more information about ESSA, see Chapter 13, section 13.7 of the Abuse, Neglect, Dependency, and TPR Manual, here.

The Parent’s Bill of Rights also includes statutory limitations on the rights of a parent. A parent does not have the right to abuse or neglect their child as defined in the Juvenile Code or to engage in unlawful conduct. G.S. 114A-15(a). The new law does not prohibit a state official or employee (which includes officials and employees of a political subdivision of the state and public school units) from acting in their “official capacity within the reasonable and prudent scope of his or her authority.” G.S. 114A-15(b)(1). The Parents’ Bill of Rights also does not prevent a court from issuing orders that are permitted by law. G.S. 114A-15(b)(2). For example, a court with subject matter jurisdiction in an abuse, neglect, or dependency action may enter an order that removes the child from the custody of the parent (see G.S. 7B-504; 7B-506; 7B-600; 7B-903), limits the parent’s right to make medical decisions for the child (see G.S. 7B-505.1; 7B-903.1(e)), limits the parent’s rights to make education or other decisions for their child (see G.S. 7B-903.1(a)-(b)), and limits visitation and contact with the child (see G.S. 7B-905.1).

Notably, when the court does enter an order that awards custody or guardianship to a suitable person who is not the parent, that custodian or guardian now has all the rights that are enumerated in the Parents’ Bill of Rights. These rights also apply to DSS when it has legal custody of a juvenile. At the same time, if the custody or guardianship order does not specify what, if any, rights the natural or adoptive parent retains, the natural or adoptive parent no longer has rights under the Parents’ Bill of Rights. See G.S. 7B-903.1(a); In re M.B., 253 N.C. App. 437 (2017).

Part II: Parental Guides and Notifications related to Education

Part II of the law enacts new statutes that address parental involvement in a child’s education.

Under the new G.S. 115C-76.20(b), public school units (defined at G.S. 115C-5(7a)) must

• inform parents of their legal rights and responsibilities regarding their child’s education (specified in G.S. 115C-76.25),
• provide annually a guide for parents about their child’s achievement and educational progress, and how a parent can help their child succeed in school (what is required in the guide is specified in the new G.S. 115C-76.30), and
• develop policies to effectively involve parents in their child’s education and school (specified in G.S. 115C-76.35).

Under the new G.S. 115C-76.25, parents have legal rights regarding their child’s education, twelve of which are specifically enumerated, including

• consenting or withholding consent for participation in reproductive health and safety education programs;
• seeking a medical or religious exemption from immunization requirements (note, if a child is in DSS custody through an order in an abuse, neglect, or dependency case, DSS may consent to immunizations unless the court orders otherwise because of a parent’s bona fide religious exemption; seeS. 7B-505.1(a), (c)(3);
• reviewing statewide standardized assessment results;
• requesting their child’s evaluation for a gifted program or identification as a student with a disability (for more information about the Individuals with Disabilities in Education Act (IDEA), see Chapter 13, section 13.8 in the Abuse, Neglect, Dependency and TPR Manual here);
• inspecting and purchasing textbooks and other instructional materials;
• accessing information about promotion, retention, and graduation requirements;
• regularly receiving report cards that address the student’s academic performance, conduct, and attendance;
• accessing information about the State’s standards and report card, attendance, and textbook standards;
• participating in parent-teacher organizations;
• opting in for certain data collection for their child;
• requiring parental consent before a student participates in surveys that include protected student information (seeS. 115C-76.65); and
• reviewing records of all materials their child has borrowed from the school library.

When a parent submits a written request for information that they have a right to access under the law, the principal has 10 business days to provide the information or inform the parent that because of the volume or complexity of the request, it will be 20 business days from the date of the request before the parent receives the information. G.S. 115C-76.40. If the information is not given, a process for contacting the superintendent and then the governing body of the public school unit is provided in the statute.

Under the new G.S. 115C-76.45, the public school unit must adopt procedures to notify the parent of the student’s physical and mental health, including providing information about health care services that are offered at the school. The statute also addresses how the parent provides consent for health care services and how the parent may obtain access to physical and mental health records. In an abuse, neglect, or dependency case, a court order that removes a juvenile from a parent, guardian, or custodian likely designates who has authority to consent to medical treatment for the juvenile. See G.S. 7B-505.1; 7B-903.1(e). The court order should control. Further, a parent is not entitled to access medical records for their child under two circumstances. First, medical records are not provided when DSS is conducting an assessment of abuse or neglect and DSS requests the medical records not be released to the parent. G.S. 115C-76.45(c); see G.S. 114A-10(6). Second, the public school unit’s education and health records are not provided to the parent when “a reasonably prudent person would believe that disclosure would result in the child becoming an abused or neglected juvenile” as defined by the Juvenile Code. G.S. 115C-76.45(c). For example, if a school has a reasonable belief that releasing information in the child’s medical records to the parent would cause the parent to abuse or neglect the child, the school is not required to disclose those records to the parent.

A child’s gender identity and a parent’s rights are also addressed in the new education laws. If a child wants to change their name or pronoun, the school unit must first provide notice to the parent. G.S. 115C-76.45(a)(5). Note, the child’s request to change their name is not limited to situations involving gender identity; it may include a change of name to a nickname, e.g., Kiki from Kirsten. For kindergarten through 4^th grade, gender identity, sexual activity, or sexuality must not be included in the curriculum, including instruction provided by third parties. However, responses to student-initiated questions about gender identity, sexual activity, or sexuality may be provided. G.S. 115C-76.55.

The public school unit must adopt a procedure for the parent to raise concerns about the procedures or practices the school unit utilizes to comply with the rights contained in these new laws. Ultimately, a parent may seek a hearing before the State Board of Education or in court. G.S. 115C-76.60.

Because of the expanded definition of “parent,” public school units will need to be aware that a DSS with an order of legal custody or another person with a court order of custody or guardianship have these rights under Part II of the new law. Conversely, the child’s natural or adoptive parents may not have these rights by virtue of a court order that is entered in an abuse, neglect, or dependency action. Court orders entered in abuse, neglect, or dependency actions are withheld from public inspection, so the legal custodian or guardian will need to notify the school of their status and relationship to the child. See G.S. 7B-2901(a). The court may also change custody or guardianship during a school year. As a result, the school may have to work with more than one “parent” for an individual student who is the subject of an abuse, neglect, or dependency action, as there may be different parents for this student during their school career.