In re M.B., 240 N.C. App. 140 (2015)

  • Facts: M.B. was taken into Durham County DSS custody when he was 8 years old.  At the age of 11, he was voluntarily admitted to a Level IV PRTF in Mecklenburg County by DSS, his legal custodian. There were six district court hearings held in Mecklenburg County that addressed his initial admission and readmission, none of which included Durham County DSS as a party. M.B. contested his readmission at an October 2013 hearing, and his attorney subpoenaed the DSS case worker after communicating with the DSS attorney.  At the hearing, the DSS worker testified by phone.  The DSS attorney was permitted to cross-examine witnesses. There was conflicting evidence regarding the recommendations for M.B.’s level of need: his therapist recommended a Level III PRTF, and the doctor who completed the psychosexual evaluation recommended a Level IV PRTF. M.B. has sexualized behaviors and a low IQ. The DSS social worker focused exclusively on finding a Level IV PRTF without there having been a Care Review to resolve the different recommendations regarding M.B.’s level of need. The court ordered M.B.’s readmission for 30 days while a Care Review could be held and ordered that an appropriate Level III facility be explored first, before considering a transfer to a different Level IV facility. M.B. appealed the 30-day readmission order.
  • Role of DSS as Party – DSS filed a motion to dismiss the appeal for failing to be served as a necessary party or in the alternative be served with the appellate filings.  The motion to dismiss was denied but the alternative relief was granted because the COA determined the trial court treated DSS as a party during the readmission hearing when it allowed the DSS attorney to admit evidence, cross-examine witnesses, and make arguments. . M.B. was not prejudiced by DSS’s participation in the hearing, and by subpoenaing the DSS social worker, M.S. “opened the door” for adverse testimony. M.B. did not timely preserve an appeal of the issue of DSS’s party status.
  • Subject Matter Jurisdiction – The provision in G.S. 7B-200 that automatically stays the issue of custody in a civil action does not apply to an admission of the juvenile in a PRTF located in a county that is different from the county of the 7B action.  Relying on the holding in In re Phillips, 99 N.C. App. 159 (1990), the district court in the county where the PRTF is located has jurisdiction over the admission so long as it does not conflict with the order of the prior court.
  • Placement Options – G.S. 122C-224.3(f) requires for a readmission order to a PRTF that the court find by clear, cogent, and convincing evidence that the minor is (1) mentally ill or a substance abuser and (2) in need for further treatment at the 24-hour facility to which he has been admitted. In addition, readmission should only occur when “lesser measures will be insufficient.” Those least restrictive therapeutical settings must be available. At the time of M.B.’s readmission hearing, “the court was essentially faced with the option of either readmitting… or else allowing a 12-year-old boy with a history of unmanaged sexual deviance problems and a newly discovered intellectual disability to be sent to a non-existent Level III placement or to an emergency placement that neither [the therapist] nor DSS believed would provide sufficient supervision and support for his needs.”  The court’s order of readmission was in keeping with the legislative intent regarding available resources. However, the juvenile’s constitutionally protected liberty interests were compromised by the “lackluster performance” of DSS in failing to take timely action to secure post-discharge placements.


Civil Cases with Application to Child Welfare
Judicial Review of Child's Voluntary Admission
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