• Enforcing Foreign Judgments – What defenses can a judgment debtor raise?

    What happens when a creditor gets a judgment against a debtor in Alabama (or another state) but then the judgment debtor moves to North Carolina, or the bulk of its property is in North Carolina?  Can the creditor can get its “foreign” (meaning out-of-state, not out-of-country) judgment enforced in North Carolina?  Yes, and typically the most efficient way is to follow the steps in North Carolina’s version of the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), G.S. 1C-1703 through -1708.

    If the creditor follows the UEFJA’s filing and notice requirements, the foreign judgment will be “docketed and indexed in the same manner as a judgment of this State.”  The creditor can seek enforcement of the judgment just as if it had originally been entered in North Carolina.  But the UEFJA further provides that the judgment “is subject to the same defenses as a judgment of this State[.]” G.S. 1C-1703(c).  To that end, before enforcement can begin, the judgment debtor has a 30-day window to file a motion for relief from (or notice of defenses to) the judgment.  G.S. 1C-1704(b).  The UEFJA goes on to state that the debtor can raise “any other ground for which relief from a judgment of this State would be allowed.” 1C-1705(a).

    On the face of things, the UEFJA’s “same defenses” and “any other ground” language seems pretty broad and appears to open up all kinds of challenges.  But does it really mean all defenses that a debtor might raise to enforcement of a North Carolina judgment?  More pointedly, does every Rule 60(b) basis for “relief” from judgment apply? Continue Reading

  • No Sua Sponte Change of Venue Allowed

    It is not always clear when a court can exercise authority sua sponte, or to put it in English, on its own motion, without a party specifically requesting that the court act.  Last week, the court of appeals held that a trial court does not have the authority to change venue sua sponte. Unless a defendant files a timely motion requesting a change and establishes grounds for moving the case to another county, a plaintiff has the right to prosecute a civil case in the county of his or her own choosing.

    Continue Reading

  • Unconscionability, Public Housing & Summary Ejectment

    In a prior post, I talked about Eastern Carolina Regional Housing Authority v. Lofton, 767 S.E.2d 63 (2014), a North Carolina Court of Appeals case requiring a landlord seeking summary ejectment based on breach of a lease condition to prove as an essential element of the case “that summarily ejecting [the] defendant would not be unconscionable.” Last week the North Carolina Supreme Court disagreed in a long-awaited opinion, making clear that “the equitable defense of unconscionability is not a consideration in summary ejectment proceedings.” In so doing, the Supreme Court finally put the issue to rest, reconciling inconsistent statements of the law in several Court of Appeals cases, including Lincoln Terrace Associates v. Kelly, Charlotte Housing Authority v. Fleming, 123 N.C. App. 511 (1996), and Durham Hosiery v. Morris. Today, NC law provides that in an action for summary ejectment based on breach of a lease condition, it is sufficient for a landlord to demonstrate that the tenant breached the lease in a manner triggering the right to declare a forfeiture; the landlord has no additional burden to demonstrate that the result of such forfeiture will not be unconscionable.  The Lofton opinion, written by Justice Newby, is significant for another reason: the Court also addressed the relative roles of a public housing authority (PHA) and a trial court in a summary ejectment action based on criminal activity in violation of the lease.

    Continue Reading

  • Back to Parenting Coordinators in Custody Cases

    A few weeks ago, I posted blog about Parenting Coordinators (“PCs”) in Child Custody Cases and noted the ambiguity concerning the court’s authority to respond when a PC requests a hearing pursuant to GS 50-97 and identifies changes that need to be made to the existing custody order. Shortly thereafter, the Court of Appeals provided more guidance on this issue. In Tankala v. Pithavadian, NC App (July 19, 2016), the court held that the strict limitation on a court’s authority to “tweak” custody orders – see Blog “No ‘tweaking’ of Custody Orders Allowed – does not necessarily mean the court cannot address problems identified by a PC.

    Continue Reading

  • You Need to Know More Than Just the Law

    “We are not criminal defense lawyers. We are civil rights lawyers because being a criminal defense lawyer is kind of limiting”. (Alex Charns, Attorney, Annual Contractor and Assigned Counsel Training, UNC School of Government June 2016).

    Considering all the many issues clients present with, referring to ourselves as only a specific type of attorney, such as a juvenile or family law attorney, does seem limiting. Representing people in any area of law requires more of attorneys, especially as they begin to address the multitude of social, health, and economic challenges their clients face.

    Continue Reading

  • It’s My Birthday and I’ll Cry if I Want To; Is That the Norm for Children in Foster Care?

    Today is my birthday (for those of you who are wondering, 46). It is my absolutely favorite day of the year. It’s not because of presents or the fact that I can easily justify why I should be the center of attention for the day (yes, I am a Leo). It’s because every year, on August 12th, I know no matter what my sister, my brother, and my mother will call me. It’s not a text; it’s not an email; it’s an actual phone call, with a real conversation. I can count on that predictability. Knowing I’m going to talk to each of them makes me really happy. My mother will call first; my sister will sing me some happy birthday jingle she made up, and my brother will wish me a happy birthday while asking how I’m going to celebrate and what else is happening in my life.

    As my birthday approached this year, I found myself thinking about children in foster care and their birthdays. Is there any predictability? Is there a family visit? Are there phone calls? Is the day even acknowledged? I searched the relevant statutes, regulations, and state’s policy manuals, and I couldn’t find anything that addressed a child’s birthday (if there’s something out there that I missed, please let me know). But, the statutory, regulatory, and policy silence does not mean that the court order or the child’s case plan should also be silent. Continue Reading

  • Due Process Rights and Children: Fifty Years of In re Gault – Part One

    On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:

    • the right to notice of the charges;
    • the right to an attorney;
    • the right to remain silent; and
    • the right to confront and cross-examine witnesses.

    While this decision marked a watershed moment in children’s rights, the language of the Court was not absolute. The Supreme Court did not extend these rights to all juveniles. Gault applies only to juveniles whose adjudication of delinquency may result in commitment to a state institution, which excludes undisciplined juveniles. The Court also limited its holding to the adjudicatory stage, leaving states open to define due process in other stages of juvenile proceedings (i.e., pre-adjudication, disposition, and post-disposition). Gault, 387 U.S. at 13. As a result, the decision did not completely change the legal landscape but left a legal patchwork among state jurisdictions that continues today. This post is the first in a series of posts that will discuss Gault’s impact on juvenile delinquency proceedings in NC and whether Gault’s promise of due process rights for children has been fully achieved.

    Continue Reading

  • Equitable Distribution: Can we use the date of separation from the divorce judgment?

    Anyone who works with equitable distribution knows that the date of separation is a critical fact that must be established before anything else can be done in the case because it is the date used to define and value the marital estate. The date of separation should be established before the parties spend time and money engaging in the discovery process and definitely must be established before the court begins the process of classifying and valuing marital and divisible property.

    So what is the relationship between a date of separation found as a fact in an absolute divorce judgment and the date of separation in the equitable distribution case? If the parties have obtained an absolute divorce and that judgment contains a date of separation, is that date binding on the equitable distribution case? Can one of the parties argue in the ED case that a different date was the actual date of separation?

    Continue Reading

  • May a Different Judge Hear My Rule 60(b) Motion?

    Lawyers typically don’t litigate (nor judges adjudicate) for very long in North Carolina without confronting Rule of Civil Procedure 60(b).  This rule allows a trial court to “relieve a party…from a final judgment, order, or proceeding” for a number of reasons based in equity. The reasons are divided into six categories:

    • Mistake, inadvertence, surprise, or excusable neglect;
    • Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
    • Fraud…, misrepresentation, or other misconduct of an adverse party;
    • The judgment is void;
    • The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
    • Any other reason justifying relief from the operation of the judgment.

    Unlike Rule 50 (JNOV) and 59 (new trial) motions, which must be made within 10 days after judgment, Rule 60(b) motions may be filed up to one year from the order (or, for the last three categories, potentially even later), as long as the timing is reasonable. There will be occasions when the moving party can be heard by the same judge who issued the order.  But often the passage of time can make this difficult: The judge may be presiding in a different district or may be ill, on leave, or no longer on the bench.  It’s not surprising, then, that fairly often my colleagues and I are asked:  May a judge other than the original judge hear and rule on a Rule 60(b) motion? Continue Reading

  • Debt Buyers & North Carolina’s Consumer Economic Protection Act

    Last month John Oliver made headlines across the country when his TV show, Last Week Tonight, did an episode focusing on common practices by debt buyers.  To illustrate how easy it is to buy consumer debt, Oliver formed a debt-buying company (“CARP”) after complying with legal requirements in Mississippi: paying $50 to the State and appointing himself Chairman of the Board. The new company set up a very basic website and was quickly offered an opportunity to buy $3 million of consumer medical debt for $60,000, along with the names, addresses, and social security numbers of almost 9,000 alleged debtors.  At the end of the episode Oliver— in his role as CARP Chairman– forgave the debt by pushing a giant red button. You can watch the excitement, and perhaps learn something about debt-buying, by going to https://www.youtube.com/watch?v=hxUAntt1z2c .

    Continue Reading
  • The Clerk’s Contempt Authority

    The clerk of superior court and assistant clerks, when acting as judicial officials, have the authority to punish criminal contempt and hold persons in civil contempt.  G.S. 7A-103(7).  However, this authority does not exactly mirror the authority of district or superior court judges who have broad contempt powers.  In fact, the clerk’s authority is limited to two instances:

    Continue Reading
  • Vinson, Voisine, and Misdemeanor Crimes of Domestic Violence

    This post was authored by School of Government faculty member Jeff Welty and posted originally on the School’s Criminal Law Blog

    The United States Supreme Court recently decided a case about what counts as a “misdemeanor crime of domestic violence” for purposes of the federal statute prohibiting individuals who have been convicted of such crimes from possessing firearms. I’ve had several questions about whether the ruling affects last year’s Fourth Circuit decision holding that North Carolina assaults generally don’t qualify as “misdemeanor crime[s] of domestic violence.” For the reasons set out below, I don’t think the Supreme Court case clearly overrules the Fourth Circuit’s decision.

    Continue Reading

  • 2016 Legislative Changes Impacting Child Welfare

    *This post was updated on August 1, 2016 to reflect the Session Law for H424.

    The 2016 Appropriations Act (S.L. 2016-94) addresses more than the State’s budget. Section 12.C makes substantive changes to the General Statutes in Chapter 7B that govern abuse, neglect, or dependency proceedings. The statutory amendments became effective on July 1st. In addition, S.L. 2016-115 (H424), creates a new criminal statute, “The Unlawful Transfer of Custody of a Minor Child,” and is effective for offenses committed on or after December 1, 2016. The law also amends the definition of a neglected juvenile in G.S. Chapter 7B.  Continue Reading

  • Third Party Custody: Does a parent lose constitutionally protected status by signing a consent custody order granting custody rights to a non-parent?

    It is now well established that a parent has a constitutional right to exclusive care, custody and control of his or her child. This constitutional right protects a parent against claims for custody by non-parents. A court cannot apply the best interest of the child test to determine whether a non-parent should have custody of a child unless the court first concludes that the parent has waived her constitutional right to exclusive custody. A parent waives her constitutional right by being unfit, neglecting the welfare of the child, or by conduct otherwise inconsistent with the parent’s protected status. There is no precise definition of conduct inconsistent with protected status and our appellate courts have provided no comprehensive list of actions that will result in a parent’s loss of constitutional rights. Instead, whether a parent’s conduct has been inconsistent with protected status is an issue that must be determined on a case-by-case basis. The non-parent seeking custody has the burden of proving the parent’s inconsistent conduct by clear, cogent and convincing evidence. For more detail on this law, see Family Law Bulletin, Third Party Custody and Visitation Actions.

    What if a parent signs a consent custody order that grants custody rights to a non-parent third party? Does the parent lose the ability to assert her constitutional right to custody in subsequent custody proceedings? For example, if a parent agrees to a court order granting custody to grandmother, does the parent have the constitutional right to regain custody from grandmother in the future? Or, if another non-parent wants custody or visitation after parent has entered into a consent custody order with grandmother, does the other non-parent still need to prove parent has waived her constitutional right to custody and, if so, can the non-parent rely on the fact that parent voluntarily gave custody to the grandmother to establish that the parent acted inconsistent with her protected status?

    Continue Reading

  • Consecutive Terms of Commitment for a Delinquent Juvenile

    Can a district court judge impose a consecutive term of commitment upon a delinquent juvenile who is already committed to a youth development center (YDC)? Until yesterday, when I had to research this question for a client, I assumed that consecutive terms of confinement applied only to adult criminal sentences under G.S. 15A-1354 but not to juvenile dispositions. Juveniles who are long term committed to juvenile facilities generally are placed there indefinitely and must work towards release by completing appropriate treatment and services designed to correct their behavior. Typically, there is no predetermined end date to the commitment (like a criminal sentence) which is why I assumed that juveniles could not receive consecutive terms. I was surprised to learn that my assumption was wrong when I found what appears to be the only NC appellate decision on the issue. See Matter of Thompson, 74 N.C. App. 329, 330 (1985). Although Thompson holds that a court may impose a consecutive commitment term, there are a couple reasons why courts may choose not to do so in a delinquency case. Continue Reading

  • Parenting Coordinators in Custody Cases

    Unfortunately, the entry of a custody order does not always stop conflict between parents. Anyone working in family law knows that there are cases where, no matter how much effort and skill goes into creating the parenting plan, the parties will continue to come back to court because of the inability of one parent or both to stop fighting.

    Recognizing that on-going litigation is bad for families, the General Assembly in 2005 enacted Article 5 of Chapter 50, GS 50-90 through 50-100, to authorize the appointment of a Parenting Coordinator (“PC”) in custody cases determined to be ‘high-conflict’. The hope is that the PC can help parents reduce their need to return to court.

    Continue Reading

  • Paralegal Fees as Part of Attorney Fee Award?

    In honor of this short court week, here’s a brief post answering a question I’ve been asked a few times:  When a statute authorizes a court to award reasonable attorney fees as costs, can the fee award also include reasonable paralegal fees?  (Note that paralegal fees are not separately included in the “complete and exclusive” list of allowable expenses in 7A-305(d).)  Some trial judges and clerks of court routinely include paralegal fees in attorney fee awards and others do not.  But have North Carolina’s appellate courts addressed the specific question one way or another?  Yes, and the short answer is that trial courts do indeed have this discretion.  In Lea Co. v. North Carolina Board of Transportation, the Supreme Court reviewed an attorney fee award in the context of a condemnation action.  The court stated pointedly that,

    Continue Reading
  • From a Parent Wrongly Accused of Molesting Her Daughter to Becoming an Attorney, Lessons Learned

    In May 2008 a kindergarten teacher in a small town in Georgia was accused of sexually molesting three children. As a result, she was criminally charged, and she lost custody of her son and daughter. For two years, she was not allowed any contact with her daughter, one of the alleged victims.

    Tonya Craft, the accused teacher, shared her story during a session for investigators at the May 2016 spring public defender and investigator conference. Her presentation focused on the importance of client-centered investigation and representation. As I listened to her story about her criminal case, I heard valuable lessons that I think are relevant for attorneys representing parents in abuse, neglect, and dependency proceedings. Continue Reading

  • Administrative Inspection Warrants in Adult Protective Services Cases

    The county department of social services (DSS) receives a report that a 65-year old woman, Mary, was injured by a family member who repeatedly hit her during a dispute that took place at Mary’s home.   Mary lives with her adult daughter, Patricia, and son-in-law, Frank.  The report includes a statement that Mary has been recently diagnosed with dementia and has not left the house in more than a month.  After finding the necessary allegations to screen the report in as an adult protective services (APS) report, the case is assigned to an APS caseworker who commences an evaluation to investigate the report further and determine whether Mary is a disabled adult subject to abuse, neglect, or exploitation and in need of protective services.  See G.S. 108A-103.

    When the caseworker goes to visit Mary as part of the evaluation, Frank refuses to allow her in the home.  The caseworker returns multiple times and each time is denied entry and access to Mary.  The caseworker determines that it is not possible to complete the evaluation without meeting with Mary.  Is there anything that she can do to gain access to the home and thus to Mary? Continue Reading

  • “Live Loan” Checks in Small Claims Court

    Magistrates in some counties are reporting increasing numbers of actions brought by finance companies to collect debts arising from “live loan” checks.  Many of us have seen these in our mailbox: documents that look like checks, made out to us personally, accompanied by instructions for quickly and easily converting the document to cash. When the recipient cashes the check, a contract for loan is created. This post will take a brief look at two North Carolina statutes that govern such loans: GS 75-20, which mandates specific disclosures on the check as well as the attached loan agreement, and GS Ch. 53, Art. 15, the Consumer Finance Act (CFA). Continue Reading

  • Teaching Judges about the School to Prison Pipeline

    Every June after celebrating Father’s Day, district court judges throughout the state head to Wrightsville Beach for their annual summer conference. Normally, I get to tag along to give them a legal update on recent juvenile delinquency cases and legislation enacted since their fall conference. However, with less than a handful of published delinquency cases decided since the fall and no new legislation, I thought I’d miss this one. To my surprise, they wanted to hear about a different juvenile law topic – The School to Prison Pipeline (or STPP) – a somewhat controversial topic to discuss with judges because it’s more about policy than law. Here’s what I told them in the most neutral, non-advocacy way possible. Continue Reading

  • New Book! Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases

    This Sunday is Father’s Day, a day that celebrates fathers. It’s the perfect time to announce my new book, Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases. The book recognizes the role of fathers in abuse, neglect, or dependency cases.  Put simply, they have a role. Fathers are necessary parties to the court proceeding. See G.S. 7B-401.1(b). Fathers impact a child’s placement, visitation, and permanent plan.

    Unfortunately, every child does not have a father who has been identified by a marital presumption, acknowledgment, or judicial determination of paternity. Even when a father has been identified, his paternity has not necessarily been established, which allows for it to be challenged. The uncertainty in knowing who a child’s father may or may not be has resulted in cases where no father is named or the wrong man is named as a respondent father in the court action.  Continue Reading

  • Trial Court Jurisdiction Following Appeal of an Interlocutory Order

    My last blog post discussed the loss of trial court jurisdiction following an appeal. But the court of appeals has held that only appropriate appeals remove jurisdiction from the trial court. If a party appeals an order that is not immediately appealable, the trial court is not divested of jurisdiction and can proceed with the merits of the case, even if the merits involve the issues on appeal. See T&T Development Co., Inc. v. Southern National Bank, 125 N.C. App. 600 (1997)(appeal of decision on a motion in limine did not deprive court of jurisdiction); Harris v. Harris, 58 N.C. App. 175, rev’d on other grounds, 307 N.C. 684 (1983)(appeal of an interlocutory order in a separation agreement case did not deprive court of jurisdiction).

    Generally speaking, a party has the right to appeal only a final judgment. However, there are times that an interlocutory order is appropriate. So what should the court do when a party appeals an order that clearly is not a final judgment, such as a temporary custody order or a PSS order or an interim distribution in an ED case? When is the interlocutory appeal appropriate?

    Continue Reading

  • A Parent’s Right to Inherit Intestate from a Child

    A. The Statute

    When a person dies without a will, the person dies intestate and the person’s property is distributed in accordance with the Intestate Succession Act (the “Act”) found in Chapter 29 of the North Carolina General Statutes.  The Act states that if a person dies intestate without a spouse or lineal descendants (meaning children, grandchildren, etc.), the person’s parents are entitled to take equal shares of the person’s estate if both parents are alive.  G.S. 29-2(4); G.S. 29-15(3).  If only one parent is alive, then that surviving parent takes the entirety of the intestate estate. G.S. 29-15(3).

    The parental right to inherit via intestate succession from a child is not an unqualified right. Under G.S. 31A-2, a parent who willfully abandons the care and maintenance of his or her child shall lose all rights to intestate succession in any part of the child’s estate. This bar includes any recovery from a wrongful death action because, pursuant to G.S. 28A-18-2(a), wrongful death proceeds are disposed of as provided in the Act, even though such assets pass outside of the estate.

    Although a parent may have willfully abandoned a child, the parent may still inherit from a child if the parent is able to show an exception to the bar applies.  The two exceptions listed in the statute are if the abandoning parent:

    1. Resumed care and maintenance at least one year prior to the death of the child and continued the same until the child’s death; or
    2. Was deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child. G.S. 31A-2(1) and (2).

    Continue Reading

  • The Harshest of Remedies: Dismissal for Failure to Prosecute

    In civil litigation, delays can seem almost inevitable. Because litigation happens in the real world and not a perfect one, the Rules of Civil Procedure allow a little flexibility.  Within limits, parties are permitted to extend the various deadlines for pleadings, discovery, responses to motions, and other requirements (as a starting point, see Rule 6(b)).  But sometimes parties can simply push the delays too far.  For various reasons some plaintiffs just won’t advance the ball, and for their opponents, the light at the end of the litigation tunnel starts to fade.  When a case languishes for too long without good reason, the court may take action, even to the point of dismissing the case or claim entirely for “failure to prosecute.”  This authority is found in Rule 41(b) of the Rules of Civil Procedure, which says:

    Continue Reading
  • Trial Court Jurisdiction Following Appeal

    In Ponder v. Ponder, NC App (May 3, 2016), the trial court conducted a lengthy hearing on plaintiff’s motion to renew a DVPO. Realizing the order needed numerous findings of fact to resolve the issues litigated but wanting to give plaintiff immediate protection, the trial court entered a renewal order with no findings of fact on AOC Form CV-314 and informed the parties that a more detailed supplemental order would replace the form order as soon as the court had time to complete it. Following entry of the form order, defendant appealed. The trial court then entered the supplemental order with extensive findings of fact only to have the court of appeals hold that both the form and the supplemental orders were void ab initio. The form order was void for a lack of findings and the supplemental order was void because it was entered after appeal was taken.

    Continue Reading

  • Children in DSS Custody Who Need Treatment in a PRTF: There’s a Disconnect

    I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:

    1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
    2. the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.

    The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other. Continue Reading

  • Alimony: Cohabitation is All About Money After All

    North Carolina law long has provided that court-ordered alimony terminates upon the death of either the supporting or dependent spouse and upon the remarriage of the dependent spouse. Since 1995, the law provides that even if the dependent spouse does not remarry, alimony also will terminate if the receiver engages in cohabitation. Our appellate courts have struggled to provide clear guidance regarding how to determine when a relationship amounts to cohabitation. Last December, in Setzler v. Setzler, 781 SE2d 64 (NC App., 2015), the court of appeals told us that the primary purpose of the cohabitation rule is to discourage “bad faith” decisions not to remarry and provided the clearest statement to date that cohabitation is proven by showing a relationship that provides economic benefits to the dependent spouse similar to those that would be provided by marriage.

    Continue Reading

  • When Parental Discipline Goes Too Far, It’s Child Abuse

    Before On the Civil Side existed, the story about NFL running back, Adrian Peterson, pleading no contest to a misdemeanor reckless assault charge for disciplining his 4-year old son with a switch was national news. I wrote about what I thought would happen to him here in NC for our Criminal Law Blog: Parental Discipline: When Is It Abuse and/or a Crime? Since I wrote that post, the NC Court of Appeals published its first opinions interpreting the definition of abuse as applied to a child protective case that says:

    a child is abused when his or her parent, guardian, custodian, or caretaker uses or allows to be used cruel or grossly inappropriate procedures or devices to modify the child’s behavior.

    G.S. 7B-101(1)c.

    In other words, a child is abused when parental discipline goes too far.  How does a court determine whether a parent has gone too far? Continue Reading

  • DVPO Can Be Set Aside When Victim is No Longer Afraid

    On Tuesday of this week, the Court of Appeals in Pope v. Pope upheld a decision by a trial judge to set aside a DVPO pursuant to GS 1A-1, Rule 60(b)(5). The trial court concluded, and the court of appeals agreed, that evidence showing plaintiff clearly was no longer afraid of defendant established that “it was no longer equitable for the judgment to have prospective application.”

    Continue Reading

  • Does NC Need a Teen Sexting Law?

    A growing number of teens in NC and across the nation are facing criminal charges for sexting.

    A few months ago, I wrote a blog post about a Fayetteville case involving two teens charged with felony child pornography for sending naked selfies to each other. The teens in that case, a boyfriend and girlfriend, ultimately pled guilty to misdemeanors (disseminating harmful material to minors) and their cases will be dismissed if they successfully complete a one-year term of probation under a deferred prosecution agreement. New sexting cases are reportedly being investigated in Wake County at two separate high schools, one of which may involve extortion. Based on my recent advising requests, other counties are also dealing with sexting issues in their schools. The offending students often end up with felony charges, at least initially, for behavior which one recent study suggests is a fairly common practice among U.S. teens. The question is how should the state respond?

    Continue Reading

  • Child Support: Maintenance and Gifts Are Actual Income??

    The NC Child Support Guidelines provide that the term gross income “includes income from any source” and the Court of Appeal s has held repeatedly that the term should be construed very broadly. See e.g. Spicer v. Spicer, 168 NC App 283 (2005)(even the pain and suffering component of a personal injury settlement is income) and Moore v. Onafowora, 208 NC App 674 (2010)(bonuses received on a regular basis are included as recurring income). Unlike many other states, the NC Guidelines even count nonrecurring and one-time lump sum payments as income.

    In an unpublished opinion issued last week, the Court of Appeals reaffirmed a line of cases holding that gifts and ‘maintenance’ received from third parties also must be included as income. In Cumberland County v. Cheeks, May 3, 2016, the Court of Appeals held that BAH (Basic Allowance for Housing) payments received by military personnel who do not live in government housing must be counted as income because the payments offset the living expenses of the service member.

    Continue Reading

  • Jury Misconduct – Will the Judge Order a New Trial?

    Anyone who has ever been a juror in a civil trial probably remembers the judge’s repeated instructions not to talk to anyone about the case prior to deliberations, to avoid communications with parties, witnesses, and attorneys, to report to the bailiff when anyone tries to talk to a juror about the case, to avoid media coverage of the trial, to refrain from doing independent investigation (nope, not even casual Googling), and to base the verdict only on the evidence.  The whole point, of course, is to make the trial as fair as possible.  But what if a juror goes astray? When can a losing party get relief based on the juror’s misdeeds?

    Rule 59 of the North Carolina Rules of Civil Procedure sets out nine categories of grounds for a new trial. Among them is Rule 59(a)(2), which in part allows a court to grant a new trial based on “misconduct of the jury.”  Yesterday in Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., the Court of Appeals assessed whether the trial judge should have ordered a new trial where, Continue Reading

  • Does Summary Judgment Divorce Require a Hearing?

    Absolute divorce trials seldom, if ever, involve any sort of courtroom drama. Most of the time, these ‘trials’ involve one party coming to court to testify for less than 5 minutes or the attorney of one party coming to court to hand up a summary judgment for the judge to sign. Most requests for divorce are not contested – in large part because there generally are no defenses to divorce other than the failure to live separate and apart for one year.

    So it is no wonder that some districts have decided to take the process of entering summary judgment divorce out of the courtroom. To save valuable court time, some districts have decided to adopt the practice of having judges enter summary judgment divorces after reviewing the pleadings in chambers. Notices are sent to the non-moving party stating that the summary judgment will be entered by the court on a specific date or at some point during a specific week. No actual hearing is held in the courtroom on the motion for summary judgment.

    Is this okay?

    Continue Reading

  • Some Things to Remember About Interim Guardianship

    Betty is 75 years old and lives alone.   She was recently diagnosed with dementia.  Betty’s daughter, Pam, helps look after her mother and pay her monthly bills, but has noticed a decline in Betty’s memory and ability to communicate.  Upon reviewing Betty’s monthly bank statement, Pam noticed three large payments to companies Pam did not recognize.  After some investigation, Pam discovered that the drafts were the result of a telemarketer scam.  To stop future drafts, Pam went to the bank and asked them to close Betty’s account. However, the bank refused to close the account without Betty’s authorization and told Pam that she would need to obtain guardianship of Betty to be able to close the account.  Betty refused to consent to close the account as she was afraid Pam was trying to take too much control over her life.

    Pam went online, did some research, and decided to seek interim guardianship of her mother so that she can quickly block the telemarketers from accessing her mom’s account.   What are some things Pam should keep in mind about interim guardianship before heading down to the courthouse? Continue Reading

  • Juvenile Defenders Spend Time at a Juvenile Detention Center

    Every other year the School of Government and Office of Indigent Defense Services hold a multi-day skills training for juvenile defenders in North Carolina. The first day of this year’s intensive training was held at the Guilford County Juvenile Detention Center in Greensboro, NC. The juvenile defenders first heard sessions on adolescent brain development by Dr. Ayesha Chaudhary, Forensic Psychiatrist at Duke University, and detention advocacy by Mitch Feld, Director of Children’s Defense at the Council for Children’s Rights. This set the stage for the tour of the facility and conversations with the youth. Continue Reading

  • What Is the Responsible Individual List and Why Is Someone on It?

    With April recognized as Child Abuse Prevention Month, it seemed fitting to write about North Carolina’s Responsible Individuals List (RIL). If you’re thinking “I’m a responsible person; I should be on that list,” you should know what makes a person a “responsible individual” for purposes of placement on the RIL. The definition is somewhat counterintuitive; a “responsible individual” is a parent, guardian, custodian or caretaker who has abused or seriously neglected a child. G.S. 7B-101(18a). If you are identified as a “responsible individual,” your name will be added to the statewide RIL, which is maintained by the North Carolina Department of Health and Human Services. G.S. 7B-311(b). Continue Reading

  • And They Said It Again: Never Use Earning Capacity Without Bad Faith

    Last September, I began a blog post with the following statement; “Beware. A child support or alimony order should never contain the word “capacity” or the words “ability to earn” unless it also contains the words ‘bad faith.’” Imputing Income: Voluntary Unemployment is Not Enough. On April 5, 2016, the court of appeals once again reminded us that this overly dramatic generalization of the law frequently proves true. Lasecki v. Lasecki is a great opinion to read for a review of the law relating to establishing and enforcing child support when parents have an unincorporated separation agreement and it is yet another statement by the court that we should never consider a parent’s capacity to earn at any stage of a child support proceeding unless we first determine that the parent is intentionally depressing income in deliberate disregard of a support obligation.

    Continue Reading

  • Extending a Juvenile’s Probation Term: Frequently Asked Questions

    Unless the court has specified a shorter term, a juvenile’s initial term of probation expires after one year, if not extended by the court. Extensions of probation are governed by G.S. 7B-2510(c), which was amended by HB 879 effective December 1, 2015. The statute now provides that “[p]rior to expiration of an order of probation, the court may extend it for an additional period of one year after notice and a hearing, if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the juvenile.” Since December, I’ve received numerous questions about the new notice requirement, which apparently is being interpreted in many different ways.  To help clarify this question and other issues related to extensions of probation, here’s a brief summary of FAQ’s about the procedure for extending a juvenile’s probation. Continue Reading

  • Child Custody and Support: Jurisdiction to Modify

    Unlike other civil judgments, custody and support orders can be modified when there has been a substantial change in circumstances since the order was entered. This rule is codified in North Carolina at GS 50-13.7 and every state in the country has a similar statute.

    While this authority is broad and straight forward, there are other statutory provisions that place significant limits on a court’s subject matter jurisdiction to modify a custody or support order – whether the order originally was entered in NC or in some other state or country. These statutory provisions were enacted for the purpose of discouraging parents from running from state to state in the hope of obtaining a more favorable court order.

    Continue Reading

  • Business or Shelter: When the Commercial/Residential Distinction Makes a Difference in Landlord-Tenant Cases

    My topic for today’s post is drawn from an email I received last week from a magistrate asking several great questions. Here’s what she wrote:

    “I was just thinking about tenant/landlord relationships and types of leases. . . . What are the differences between regular lease agreements and that for commercial properties that we as magistrates need to know? Do they both have the same notice requirements? Are commercial property evictions cases that magistrates would preside over in small claims court? Are the grounds for eviction identified in [Small Claims Law] on page 157 the same for commercial leases?” In preparing to answer these questions, I learned some things I thought some of you might find interesting.

    Continue Reading
  • Hope Someone Remembered to File the Motion to Modify……..

    ***UPDATE TO POST MAY 2, 2016: On April 26, 2016, the NC Supreme Court granted a temporary stay of the Court of Appeals ruling in the case discussed in this post. See SC docket #152P16-1.

     

    On Tuesday this week, the court of appeals held that a consent order modifying an existing child support order was void because no motion to modify was filed before the consent modification was entered by the court. In Catawba County ex. rel. Rackley v. Loggins, (NC App, April 5, 2016), the court held that GS 50-13.7 clearly requires that a motion in the cause requesting modification be filed in order to invoke the subject matter jurisdiction of the court to enter any further orders in the support case. Without the motion, the court has no subject matter jurisdiction to act.

    Unfortunately, it is not uncommon in North Carolina for orders to be entered modifying existing custody and support orders without anyone actually filing a motion to modify. This practice is especially common when all parties in the case agree to the modification. The court of appeals now has made it clear that this practice of ignoring required procedure results in invalid, unenforceable orders.

    Continue Reading

  • Appeal Deadlines and Tolling under Rule 3(c)(2): Don’t Be So Sure!

    Even if you don’t know much about North Carolina’s Rules of Appellate Procedure, you probably know this:  There’s a 30-day time frame in which to appeal a civil judgment, and this deadline is jurisdictional—an untimely notice of appeal “mandates dismissal” of the appeal.  E.g., Bailey v. State, 353 N.C. 142, 156 (2000).  In other words, Thou Shalt Not Miss Thy Appeal Deadline.  Naturally, then, a would-be appellant needs to know when the 30-day appeal period begins and ends.

    The general time requirement is set out in Rule 3(c)(1), which makes clear that the notice of appeal must be filed and served within 30 days after entry of judgment as long as “the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure.”  (Served pursuant to Rule 5 within three days of entry of judgment.)  Under Rule 3(c)(2), however, when the party is not served within that three day period, the notice of appeal must be filed and served within 30 days “after service upon the party of a copy of the judgment.”

    By the plain language of Rule 3(c)(2), a party not served within three days would be led to think that its 30-day appeal clock starts when service is made.  Not so fast.  In a series of fairly recent opinions, the Court of Appeals has held that, if the appellant had some sort of actual notice of the judgment during those three days after its entry, Rule 3(c)(2) does not apply.  If there was actual notice, the 30 days instead began to run upon entry of judgment.  Here, in brief, are the opinions: Continue Reading

  • Retroactive Child Support: What is it and how is the amount determined?

    Prospective child support is the support ordered to be paid for the support of the child in the future. However, the court of appeals has held that all orders for prospective support must be effective as of the date the complaint seeking support was filed unless the trial court makes specific finding of fact to support ‘deviating’ from the general rule. Ex. rel. Miller v. Hinton, 147 NC App 700 (2001). This means that prospective support generally includes amounts ordered for a period of time before the support order is entered, but only that time period between the date of the filing of the complaint and the time of the entry of the child support order. And of course, GS 50-13.4 provides that the amount of prospective support generally is determined by application of the child support guidelines.

    But what about orders for support for a period of time before a complaint or motion for support is filed?

    Continue Reading

  • You Have a Right to Appeal My Incompetency?

    Bob and Mary have been married for 60 years.  They live at home together but recently Mary’s health has started to decline significantly.  Due to a concern over Mary’s ability to care for herself, a friend of Mary’s makes a report to the county department of social services (DSS).   After an investigation, DSS decides to file a petition to adjudicate Mary incompetent and an application to have a guardian appointed on her behalf.   DSS sends notice of the proceeding to both Bob and Jane, their daughter, as Mary’s next of kin.   After a hearing, the clerk of superior court finds that Mary is incompetent and appoints Jane as her general guardian.

    Bob comes to you as his attorney and states that he wants to appeal the clerk’s decision.  Does he have standing to appeal? Continue Reading

  • Legitimation versus Paternity: What’s the Difference?

    Earlier this month, my colleague, Meredith Smith, posted about Intestate Succession Rights and Children Born Out of Wedlock. Her post was prompted by In re Estate of Williams, ___ N.C. App. ___ (March 1, 2016), which addressed the application of G.S. 29-19(b) when determining whether the decedent’s child was an heir entitled to intestate succession. What caught my attention in the opinion were excerpts from both the orders of the clerk and the superior court  that referred to the process of legitimating a child pursuant to G.S. 29-19(b)(1) and (3). However, G.S. 29-19(b) addresses paternity, not legitimation. Legitimation for purposes of intestate succession is addressed in G.S. 29-18 (father and mother) and G.S. 29-19(a) (mother). So what is the difference? Continue Reading

  • Child Custody: Denying or Significantly Limiting a Parent’s Visitation

    In a recent blog post, I wrote about newly enacted legislation stating it is the public policy of North Carolina that custody determinations made pursuant to Chapter 50 of the General Statutes should encourage and supports a child’s relationship with both parents. Kids Need Both Parents When Possible. But in a decision published this week, the court of appeals upheld a trial court order limiting a father to supervised visits with his children every other Sunday for two hours. Meadows v. Meadows, NC App (March 15, 2016).

    Such limited access certainly doesn’t sound like the type of ‘equitable’ sharing of parenting rights and responsibilities encouraged by the new legislation.

    So when is it appropriate for a court to limit a parent’s access to his child in such an extreme way?

    Continue Reading

  • What the Interstate Compact Rules Say About Out-of-State Runaways

    When a juvenile runs from North Carolina to another state or to North Carolina from another state, interstate procedures apply to facilitate the juvenile’s safe return to his or her home state. Recently, law enforcement officials in multiple North Carolina counties have encountered out-of-state runaways and yesterday, this topic appeared on one of the School of Government monitored listservs. So, it seems like a good time to review what the Interstate Compact for Juveniles says about the legal process for returning these children to their homes. Continue Reading

  • Time Limits in Family Law Cases

    Given the ever-increasing number of family law cases in the district courts, it is not surprising that questions frequently arise concerning the court’s authority to place limitations on the amount of court time allowed to individual cases. My former colleague Michael Crowell wrote a bulletin titled Time Limits several years ago thoroughly discussing the law addressing this question. Below are excerpts from his article. The entire bulletin can be found at https://www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/aojb0902 pdf.

    Continue Reading

  • Court Approval of Minor Settlements in North Carolina

    A minor injured through negligence or other wrongdoing may bring an action through a representative to recover damages for pain and suffering, permanent injury, and impairment of earning capacity. (A claim for reimbursement of the minor’s medical expenses typically belongs to the parents.) Although minors generally are legally incapable of binding themselves to contracts, the law allows a minor’s claims to be resolved through a settlement agreement. The settlement, however, is not enforceable against the minor unless it has first been investigated and approved by the court. Sigmund Sternberger Found., Inc. v. Tannenbaum, 273 N.C. 658, 677 (1968); Ballard v. Hunter, 12 N.C. App. 613, 619 (1971). Even if the settlement is arranged by a parent, guardian, guardian ad litem, estate administrator, or attorney, the minor cannot be bound absent prior court approval. Sell v. Hotchkiss, 264 N.C. 185, 191 (1965); In re Reynolds, 206 N.C. 276 (1934); Hagins v. Phipps, 1 N.C. App. 63 (1968). The rule applies not just to claims settled after an action is filed, but also to pre-litigation settlements including waivers of a minor’s right to sue. Creech v. Melnik, 147 N.C. App. 471, 475 (2001).

    The purpose of the court’s review is to protect the interests of the minor. The investigation must focus on the minor’s welfare and fairness to the minor under the circumstances. See Redwine v. Clodfelter, 226 N.C. 366, 370 (1946) (minor’s welfare is the “guiding star”); Reynolds v. Reynolds, 208 N.C. 578, 631−32 (1935) (affirming “fair, just, and equitable” settlement). Continue Reading

  • Intestate Succession Rights and Children Born Out of Wedlock

    A 21-year old unmarried man dies without a will. An application for letters of administration is filed with the clerk of superior court by his mother and father. The only persons identified on the application as entitled to share in the decedent’s estate are his mother and father. No spouse or child is listed. No property is listed on the preliminary inventory included in the application as property of the estate or property that may be added to the estate to pay claims. The only other property identified is a potential claim from wrongful death under G.S. 28A-18-2. Based upon the application and an oath/affirmation from both parents, the clerk of superior court enters an order authorizing the issuance of letters and issues letters of administration to the parents of the decedent.

    Continue Reading
  • Minimum Notice Requirements in Small Claims Actions

    It’s not hard to understand why every state in the United States offers its residents a small claims court. Small claims courts offer two advantages increasingly hard to come by in the court system: they’re cheap, and they’re fast. In 2009 the North Carolina General Assembly took steps to ensure that small claims cases aren’t decided too fast by enacting minimum notice requirements.  Prior to this legislation, a small claims defendant might be served Monday evening for a trial held Tuesday morning. The legislation enacted two separate amendments establishing different minimum notice requirements for (1) summary ejectment actions, and (2) all other small claims cases.  As we shall see, despite their differences, the guiding principles for magistrates implementing the legislation are the same for both types of lawsuits.

    Continue Reading

  • Who Can Be a Supreme Court Justice

    Post Written by Shea Denning

    My daughter came home from elementary school last week with notecards seeking support for her nomination to serve as a justice on the U.S. Supreme Court. I think that is it pure coincidence that her politicking coincided with the nationwide interest in potential nominees for the position following the death of Justice Antonin Scalia. But because I, like everyone else, had been thinking about how the vacancy on the court would be filled and by whom, her work got me thinking:  Who exactly can be a Supreme Court Justice?

    Continue Reading

  • The Tenant Tenders: Does the Landlord Lose?

    In my most recent post, G.S. 42-3: The Landlord’s Life Preserver, I discussed summary ejectment based on the implied forfeiture provision set out in that statute. Confusion about when ejectment may be obtained on this ground, as distinguished from ejectment based on an explicit forfeiture provision in the lease itself, easily ranks #1 on my list of Most Common Summary Ejectment Errors. At the end of my previous post, I promised to next address tender as a defense to an action for summary ejectment. It comes as no surprise that the majority of North Carolina appellate cases involving tender present this same error in a different context. As is so often true in navigating the law of summary ejectment, correct identification of the ground for relief is the first step that renders subsequent steps simple. As we shall see, it is only when the landlord is reaching for the G.S. 42-3 life preserver that tender has potential application to the case.

    Continue Reading

  • New Juvenile Law Bulletin: Applying the Reasonable Child Standard to Juvenile Interrogations After J.D.B. v. North Carolina

    Nearly five years ago, the U.S. Supreme Court decided J.D.B. v. North Carolina, a case arising from the police interrogation of a middle school student in Chapel Hill. In a 5-4 decision, the Court ruled that police officers must consider a juvenile’s age when determining whether they must read juveniles their Miranda rights before questioning them. The ruling represents a major shift in Miranda jurisprudence by establishing a different standard for evaluating police interrogations of juveniles – the reasonable child standard. In the years since J.D.B., however, lower courts have not clearly defined how the reasonable child standard impacts the assessment of whether a juvenile was “in custody.” The application of this new standard also raises questions about how North Carolina courts evaluate custody determinations in the school setting. These and other issues are addressed in detail in “Applying the Reasonable Child Standard to Juvenile Interrogations After J.D.B. v. North Carolina” (No. 2016/01). Continue Reading

  • Equitable Distribution: When Marital Property is Not Owned by a Party……

    In the recent case of Nicks v. Nicks, 774 SE2d 365 (NC App 2015), husband transferred property acquired during the marriage to an LLC and the LLC thereafter was transferred to a trust. All of this occurred before the date of separation. Understandably, the trial judge in the equitable distribution action filed after the parties separated felt that the property transferred to the LLC should be classified as marital property and distributed between the spouses, so the trial court classified the LLC itself as marital property and distributed it the husband as his share of the marital estate. The court of appeals vacated the ED judgment and remanded the case to the trial court after concluding the LLC was not marital property because it was not owned by either or both spouses on the date of separation.

    Does this mean a spouse can avoid ED simply by transferring ownership of property to an LLC or other third party before the date of separation, or by allowing family members or others to hold legal title to property acquired with marital funds during the marriage?

    Continue Reading

  • Equitable Distribution: When does the marital LLC have to be joined as a party?

    The equitable distribution statutes only give trial courts the authority to distribute marital property. This means equitable distribution is all about – and only about – identifying property owned by either or both spouses on the date of separation and determining how it should be distributed between those two people.

    Marital property may include ownership interests in businesses and corporations. Just as parties can own stock in a traditional C corporation, parties also can own an LLC or an interest in an LLC. And just as a court would not be required to join, for example, Exon Corporation or Google before distributing stock owned by the parties, a court is not required to join an LLC in an ED case if the court simply distributes the marital ownership interest in the LLC between the parties.

    Continue Reading

  • New Trial Motions under Rule 59: Only for Post-trial Relief?

    North Carolina Rule of Civil Procedure 59 permits a trial judge to order a “new trial” for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and several other bases. Rule 59 relief is designed to follow fast on the heels of a trial judgment: a new trial motion must be served within 10 days of entry of judgment, and the court cannot extend this deadline. By its plain language, Rule 59 clearly is intended to provide relief after a “trial.” Several of the listed grounds indeed explicitly relate to juries and verdicts or are otherwise relevant only in a post-trial context. And, of course, the stated remedy is itself a new “trial.” To what extent are parties nevertheless allowed to use Rule 59 to seek relief from judgments not resulting from a jury or non-jury trial? And why might it matter? As discussed below, it appears that invoking Rule 59 for appealable orders other than trial judgments could put the movant’s appeal rights at risk.

    Continue Reading
  • Non-Parents’ Right to Counsel in Abuse, Neglect and Dependency Cases

    Sara DePasquale wrote a blog on the Role of a Foster Parent in the A/N/D Court Action, which prompted me to explore the role of non-parents, and specifically their right to representation.

    Prior to the filing of an abuse, neglect and dependency (A/N/D) petition, the child may be in the care of grandparents, other relatives or friends. They are providing support and maintenance and making daily decisions about the health and welfare of the child. This may be more permanent substitute care compared to the temporary care provided by a foster parent.

    Once the petition is filed each parent named in the petition is appointed provisional counsel pursuant to G.S. 7B-602. But what about non-parents? The relative or friend who has custody of or is caring for the child may meet the statutory definition of “caretaker” or “custodian”. See G.S. 7B-101. Also, the child may have a court appointed guardian [G.S.7B-600; G.S. 35A-1202(7) & (10)] at the time the petition is filed. Does the caretaker, custodian or guardian have a right to court appointed counsel if they are indigent? Continue Reading

  • The Guardian of Last Resort

    After receiving a report and finding a need for protective services, the county department of social services (DSS) requests the DSS attorney file a petition with the court to adjudicate Jane Doe an incompetent adult under G.S Chapter 35A.  The matter is heard by the clerk of superior court.  DSS, as the petitioner, has the burden of proof.  Through the presentation of testimony and other evidence at the hearing, including a multidisciplinary evaluation ordered by the clerk and prepared by DSS, the clerk determines that there is clear, cogent and convincing evidence that Jane is incompetent and that her best interests will be served by appointing DSS as her guardian of the person. Continue Reading

  • Children in Foster Care and Sex Trafficking: New NC Policy to Know About

    For the last 15 years, there has been an increased awareness of human trafficking in the U.S. That awareness has resulted in various federal and state laws seeking both to prevent human trafficking and protect the victims of human trafficking.  See Trafficking Victims and Protection Act of 2000, 22 U.S.A. Chapter 78 (reauthorized in 2003, 2005, 2008, and 2013).  Today’s post recognizes that January is National Slavery and Human Trafficking Prevention Month and discusses recent federal laws and accompanying state policy that focus on identifying and providing services to children who are in foster care and are victims of sex trafficking. Continue Reading

  • Obtaining Relief from an Adjudication of Delinquency: Does Rule 60 Apply?

    Several years ago when I was an appellate attorney for the State, I filed a cert petition seeking appellate review of a court order granting a Rule 60(b)(6) motion to set aside an adjudication of delinquency for first degree sex offense. The court found that the allegations were proven beyond a reasonable doubt but then allowed the juvenile’s Rule 60(b) motion because the offense (fellatio) was four years old, it was not committed in a violent manner, the juvenile showed no risk of reoffending, and labeling the juvenile as a sex offender would do him more harm than good. Based on these findings, the court concluded that “extraordinary circumstances” existed and that justice required granting the juvenile’s motion. The Court of Appeals declined to review the order and still hasn’t addressed whether Rule 60(b) applies to delinquency cases.

    District court judges throughout the state disagree on the answer (which I discovered during a lively debate in my first juvenile delinquency course at the School of Government). There is no clear answer, but appellate cases suggest that Rule 60(b) does apply. However, it may not authorize setting aside an adjudication order, as described above. Here’s why.

    Continue Reading

  • In re Foreclosure of Kenley: Proving Possession of the Note in a Power of Sale Foreclosure Proceeding

    In an opinion published on January 5, 2016, a three-judge panel of the NC Court of Appeals addressed an frequently contested issue in power of sale foreclosure proceedings: whether the party seeking to foreclose by power of sale provided sufficient evidence to establish it was the holder of the note under G.S. 45-21.16(d)(i).   See In re Foreclosure of Kenley, ____ N.C. App. ____ (Jan. 5, 2016). Continue Reading

  • Ordering Law Enforcement Officers to Enforce a Child Custody Order

    It is not uncommon to see custody orders – both orders entered by North Carolina courts and orders from other states – containing language such as “Law enforcement officers shall assist in the enforcement of this custody order,” or “Law enforcement shall pick up the minor child and deliver the child to the custodial parent.” While most judges intentionally enter such orders only when there is reason to be concerned for the safety of the children, these provisions often are included as standard provisions in custody order templates throughout North Carolina and are extremely common in form orders used in other states.

     

    Must a law enforcement officer comply with such a provision in an order from another state? Does a North Carolina judge have the authority to order law enforcement involvement? Case law and statutes indicate that authority for law enforcement involvement is limited.

    Continue Reading

  • Dormant or Discontinued? Service Deadlines and the Statute of Limitations

    A plaintiff facing a soon-to-expire limitations period may feel a rush of relief when the complaint is clocked in to the clerk’s office on time and the summons is ready for service. Even after filing, though, it’s too early to stop watching the clock. Failing to observe Rule 4’s time limits on service can also create a statute of limitations problem.

    Continue Reading
  • The Role of Fault in Alimony

    Long ago and far away, title and control of all of a woman’s property vested in her husband upon marriage. In exchange, the husband became responsible for support of the wife for the remainder of her life. The support obligation continued even through divorce, unless the bad conduct of the wife was the reason for the divorce.

    This is the common law foundation linking misconduct –fault – to alimony. Over time, the law came to require that any woman seeking alimony first prove that her husband’s conduct rather than her own was the cause of the marital breakup.

    Continue Reading

  • The New Law Addressing Child Maltreatment in Child Care Facilities: It’s the State’s Responsibility

    It seems fitting that the first blog post of the 2016 calendar year addresses a new law that became effective on January 1st.  S.L. 2015-123 is “An Act to Transition Abuse and Neglect Investigations in Child Care Facilities to the Division of Child Development and Early Education [DCDEE] within the Department of Health and Human Services” (DHHS). In a nutshell, county child welfare agencies (county departments) retain responsibility for screening and assessing reports of suspected child abuse, neglect, and dependency by a parent, guardian, custodian, or caretaker but are no longer responsible for screening and assessing reports of suspected abuse and neglect of a child in a child care facility. As a result, petitions filed in district court by a county department that allege a child has been abused or neglected will no longer be based on circumstances created in a child care facility. Instead, the DCDEE has assumed responsibility for investigating suspected child maltreatment occurring in a child care facility. These investigations are a component of NCDEE’s licensure procedures and requirements. S.L. 2015-123 sets forth the new process in Article 7 of G.S. Chapter 110.

    Continue Reading
  • Return of Firearms After a DVPO

    In a recent post, I wrote about requiring surrender of firearms in a DVPO. The court of appeals issued on opinion on Tuesday this week discussing when the court can order return of those firearms. In Underwood v. Hudson, the court reversed a trial court order denying return of weapons after the appellate court concluded defendant was not subject to the lifetime ban on possession which arises when a person is convicted of a “misdemeanor crime of domestic violence.”

    Continue Reading

  • Juvenile Emancipations

    In North Carolina, a 16 or 17 year old who has resided in the same North Carolina county for six months may petition the district court for an emancipation from his or her parents, guardian, or custodian.  According to statistics from the North Carolina Administrative Office of the Courts (AOC), there have been 986 emancipation filings between fiscal year 2007-2008 and 2014-2015, averaging over 120 cases a year.  Despite this number, there is a surprising lack of appellate decisions regarding juvenile emancipations. The lack of opinions has left both district courts and petitioners to figure out what the statutes require. Continue Reading

  • Reviewing Structured Settlement Sales: The Courts’ Role

    “Get Cash for Your Structured Settlement Payments NOW!” “See What Your Structured Settlement Payments Can Do!” “Get the Cash You Need Now!”

    Ever see ads like these and wonder what they’re all about? If you’ve heard of structured settlements, you may know that they are a way for injured parties to receive compensation for their injuries over time—in periodic payments—rather than in an immediate lump sum. Typically funded through the purchase of annuities, these settlements promote financial stability for injured people by preventing the money from dissipating too quickly. They also are a useful way to preserve a minor’s settlement funds until after the minor reaches adulthood. The federal government encourages the use of structured settlements by allowing qualified payments to be excluded from the recipients’ taxable income.

    Continue Reading
  • G.S. 42-3: The Landlord’s Life Preserver

    At common law a landlord confronted with a non-paying tenant had only one hope for regaining possession of rental property: a lease provision spelling out that the tenant’s default would trigger the landlord’s right to repossess the property (commonly referred to as a forfeiture clause). When the parties have agreed in advance to this consequence for failure to pay rent, an action for summary ejectment merely asks the court to enforce the agreement of the parties. The common law rule was that absent such agreement, the landlord was left to the unsatisfactory recourse of cutting his losses by terminating the lease as soon as possible and attempting to collect unpaid rent through an action for money owed — with all of the attendant problems associated with the collection of money judgments.

    Continue Reading

  • Renewal of a DVPO

    Chapter 50B requires that all civil domestic violence protective orders be of limited duration. GS 50B-3(b). However, that statute also allows the court to extend the life of a DVPO by renewing it at the request of the aggrieved party. Is a court required to renew the DVPO when requested? Is there a limit on the number of times an order can be renewed? Can a court change the terms of the order when it is renewed?  Unfortunately, Chapter 50B provides very little guidance on these and other issues that arise regarding the renewal process.

    Continue Reading

  • LME/MCOs and MDEs

    What is an LME/MCO?

     It often feels like the mental health, developmental disabilities, and substance abuse (MH/DD/SA) fields and acronyms go hand in hand.  These acronyms can be confusing and intimidating to people who are not intimately familiar with this area of the law and practice.  This confusion is exacerbated by the fact that over the last few decades, there have been a number of changes to the delivery of public MH/DD/SA services in North Carolina.  One of the major changes was the creation of local management entities/managed care organizations (LME/MCOs).

    The purpose of the LME/MCO is to deliver MH/DD/SA services by using primarily state and federal resources appropriated to them by state government to authorize, pay for, manage, and monitor services provided by their network of private providersSee Mark F. Botts, Mental Health Services, in County and Municipal Government in North Carolina Ch. 40, at 683 (Frayda S. Bluestein ed., 2014).   As of today, there are eight LME/MCOs under contract with the NC Department of Health and Human Services (DHHS) to provide public MH/DD/SA services in North Carolina.

    What is an MDE?

    LME/MCOs overlap with the world of incompetency and adult guardianship proceedings filed before the clerk of superior court when it comes to the preparation and assembly of multidisciplinary evaluations (MDEs).  An MDE is an important tool in an incompetency proceeding under G.S. Chapter 35A that is used to assist the court in determining: Continue Reading

  • Untimely Filed Juvenile Petitions – What’s the Remedy?

    Under G.S. 7B-1703(b), a juvenile court counselor (JCC) has “15 days after the complaint is received” to file the complaint as a juvenile petition, or a maximum of 30 days, if the chief court counselor has granted a 15-day extension. I’m often asked whether an untimely filed petition must be dismissed; and if so, whether the State is precluded from filing another petition for the same offense. There are two published appellate cases addressing these issues; In re D.S., 364 N.C. 184 (2010), and In re J.A.G., 206 N.C. App. 318 (2010). Here’s what they say.

    Continue Reading

  • When can the court order surrender of firearms in a DVPO?

    Both federal and state law prohibits the possession of firearms by anyone subject to a qualifying domestic violence protective order. However, the fact that possession of firearm is a crime does not give the trial court authority to order a defendant in a 50B proceeding to surrender all weapons.

    Continue Reading

  • Rule 17 Stands Alone: The NC Rules of Civil Procedure and Estate Proceedings before the Clerk of Superior Court

    Way back when in 2011, there was a significant legislative overhaul of estate proceedings in North Carolina. See G.S. 28A-2-4 (defining estate proceedings).  With those changes, the primary statute governing the procedures for an estate proceeding is now G.S. 28A-2-6.  Subsection (e) of G.S. 28A-2-6 addresses the application of the NC Rules of Civil Procedure to estate proceedings. Each rule of civil procedure generally falls into one of three categories when it comes to estate proceedings before the clerk of superior court:

    1. It applies (unless the clerk directs that it does not apply);
    2. It does not apply (unless the clerk directs that it does apply); or
    3. It is Rule 17.

    See G.S. 28A-2-6(e). Continue Reading

  • Equitable Distribution: LLCs and Divisible Property

    Because the marital estate ‘freezes’ on the date of separation, see Becker v. Becker, 88 NC App 606 (1988), an increase or decrease in the value of marital property occurring after the date of separation, or income received from marital property after the date of separation, is not included in the marital estate. The category of divisible property was created to allow a court to distribute these postseparation assets along with the marital property. If the change in value or the income is classified as divisible, it can be distributed. If it is not divisible property, the court can do nothing more than consider the income or change in value as a distribution factor.

    Continue Reading

  • Attorney Fee Provisions in Business Contracts – New Legislation Loosening the “Sign by Hand” Requirement

    First, Some Attorney Fee Basics. North Carolina generally follows the “American Rule” in requiring parties to civil litigation to be responsible for their own attorney fees: “It is well-established that the non-allowance of counsel fees has prevailed as the policy of this state at least since 1879.” Stillwell Enters, Inc. v. Interstate Equip. Co., 300 N.C. 286, 289 (1980). Attorney fee awards are allowed only when specifically authorized by statute. In general, fee-shifting is not allowed even when a party has agreed in a contract to reimburse another party’s attorney fees incurred in enforcing the agreement. Id. Two key statutory exceptions apply, however, to this rule against enforcement of attorney fee agreements. First, and most familiar, is G.S. 6-21.2, which allows enforcement of attorney fee-shifting provisions in notes, conditional sale contracts, and “other evidence of indebtedness.” I discuss the ins and outs of G.S. 6-21.2—enacted in 1967 and the subject of lots of case law—here.

    Continue Reading
  • Consenting to Medical Treatment for a Child Placed in the Custody of County Department, Part II: Non-routine and Non-emergency Medical Care

    Part I introduced the new G.S. 7B-505.1 and 7B-903.1(e) and discussed the county department’s statutory authority to consent to a child’s

    • routine medical and dental care;
    • emergency medical, surgical, or mental health care;
    • testing and evaluation in exigent circumstances, and
    • a Child Medical Evaluation (CME).

    What about Medical Care that Is neither Routine nor an Emergency? Continue Reading

  • Consenting to Medical Treatment for a Child Placed in the Custody of County Department Part I: Routine and Emergency Care and Evaluations in Exigent Circumstances

    Through S.L. 2015-136, “An Act to Make Various Changes to the Juvenile Laws Pertaining to Abuse, Neglect, and Dependency,” the General Assembly enacted G.S. 7B-505.1 and G.S. 7B-903.1(e).These two new statutes address medical decision-making authority for a child who is placed in a county department’s custody through an order entered in an abuse, neglect, and dependency action. These new laws apply to all abuse, neglect, and dependency actions that were pending on or filed after October 1, 2015. Continue Reading

  • Kids Need Both Parents When Possible

    The General Assembly has made a statement regarding the allocation of parenting rights and responsibilities in child custody proceedings. Without changing the law that custody orders should promote the best interests of the child, legislators enacted a statement of public policy designed to “promote the encouragement of parenting time with children by both parents.”

    Continue Reading

  • More Thoughts on Improper Delegation of Authority and Intermittent Confinement

    Over the past four months, I’ve had the opportunity to discuss the new juvenile delinquency legislation, S.L. 2015-58, with juvenile court officials from every part of the system – prosecutors, defenders, judges, and most recently, juvenile court counselors. While each group had distinct questions and concerns, one particular issue universally generated the most discussion. That issue was intermittent confinement (short periods of confinement in juvenile detention) or “IC days” and how the amendments to G.S. 7B-2506(12) and (20) change the way it is “imposed.” The amended statutes mandate that only judges may determine the imposition of IC days, whereas previously, judges were only required to determine the timing of the confinement. In a recent post, I explained that this change was designed to prevent judges from improperly delegating their authority to court counselors by suspending IC days and ordering court counselors to impose them immediately upon the juvenile’s noncompliance with certain conditions. This practice will soon be prohibited (as of December 1, 2015), since the new law clarifies that only the court may impose the confinement. However, the lack of specific guidelines has left judges and court counselors wondering what they must do to comply with the statute. Here are some additional thoughts about how I think this legislation will impact the court.

    Continue Reading
  • New Lifetime Civil No-Contact Order

    We have Chapter 50B authorizing civil domestic violence protective orders to protect victims of domestic violence and Chapter 50C authorizing civil no-contact orders to protect victims of sexual misconduct and stalking who do not have the personal relationship with the perpetrator required for a 50B DVPO. Effective October 1, 2015, we now also have Chapter 50D authorizing permanent, non-expiring civil no-contact orders to provide additional protection to victims of sexual violence.

    Continue Reading

  • Small Claims Procedure for Magistrates: Judgments, Orders, and the Difference between Them

    When a magistrate has heard evidence in a case and makes a decision based on that evidence, the formal document reflecting that decision is a judgment of the court. Form judgments for each kind of small claims case are provided by the AOC (designated as CVM forms), and they provide a valuable guide to the finding and conclusions required for a proper judgment. While the AOC forms are convenient, the law does not require their use, and some counties routinely utilize different forms. The AOC forms do reflect thoughtful decisions about what should be included in a judgment, however, and a small claims magistrate is advised to investigate further before deciding to routinely deviate from or ignore some portion of the judgment form.

    Continue Reading

  • Children in Foster Care, “Normal Childhood Activities,” and the “Reasonable and Prudent Parent” Standard

    On October 1, 2015, several new statutes affecting abuse, neglect, and dependency cases went into effect. Three new statutes specifically address decision-making standards related to social and cultural activities for children who are placed in a county department’s custody because of abuse, neglect, or dependency. The new statutes were created by S.L. 2015-135 and are

    • G.S. 131D-10.2A: Reasonable and Prudent Parent Standard,
    • G.S. 7B-903.1: Juvenile Placed in Custody of Department of Social Services, and
    • G.S. 48A-4: Certain Minors Competent to Contract.

    Continue Reading

  • It’s Only Juvenile Court, Is an Expunction Necessary?

    In discussing my experience as a juvenile defender with non-lawyers, I have learned that many people believe that juvenile proceedings are completely confidential and under no circumstances can anyone learn about the case or access the records. They also think juvenile matters are not very significant and have no real consequences beyond the juvenile court process.

    Continue Reading

  • New(ish) Protections for Tenants Occupying Foreclosed Property

    The protections afforded to tenants in foreclosure proceedings under the federal Protecting Tenants at Foreclosure Act (PTFA) of 2009 ended on December 31, 2014.  The act expired and Congress did not extend it.  Effective October 1, 2015, the North Carolina General Assembly enacted a law that partially fills the hole left by the expiration of the PTFA.  This post covers some of the key changes and protections resulting from a new section G.S. 45-21.33A created by S.L. 2015-178 (H 174). Continue Reading

  • Imputing Income: So What is Bad Faith?

    In my last post, Imputing Income: Voluntary Unemployment is Not Enough, I wrote about the bad faith rule; the long-established rule that child support and alimony orders must be based on the actual present income of the parties unless there is cause to impute income. When income is imputed, a support order is based on earning capacity rather than actual income. The bad faith rule provides that earning capacity can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation.

    So what findings of fact are sufficient to establish bad faith?

    Continue Reading

  • Subject Matter Jurisdiction in Actions for Summary Ejectment

    For hundreds of years, the law has provided a procedure for landlords to obtain assistance from the justice system in ousting a tenant and taking back rental property. In North Carolina in the late 19th Century, just as today, “proceedings in ejectment” were one of the most common types of civil cases filed. I recently spent some time reading many older landlord-tenant cases in an effort to trace the development of the law pertaining to subject matter jurisdiction in summary ejectment cases. I began with some reservations about the continued relevance of these cases. After all, North Carolina’s entire court system was revised – and the Rules of Civil Procedure adopted– after many of these cases were decided. Justices of the peace no longer hold court, and appeal from small claims court is to district—not superior—court today. What I found striking in doing this research was actually how little has changed. The questions in the late 1800s may have used different legal terminology, but would be familiar to any small claims magistrate. One of the most common issues, for example, was whether a seller/landlord could regain possession of property subject to a rent-to-own agreement by way of summary ejectment.  Another was whether a buyer by way of foreclosure could use summary ejectment to oust the former owner. What I found is that the rules governing jurisdiction in ejectment cases have remained remarkably consistent in application, although the underlying rationale for the rules has, from the beginning, been considerably more variable. This post attempts to summarize those procedural rules where they are clear. In my next post, I’ll discuss some troublesome areas in which clarity is lacking. Continue Reading

  • What Is the Role of a Foster Parent in the A/N/D Court Action?

    A foster parent provides substitute care for a child who has been separated from his or her family because of abuse, neglect or dependency. G.S. 131D-10.2(9a);10A NCAC 70B.0101. When a  parent, relative, guardian, or custodian is unable to care for a child, a foster parent is a critical part of a county department’s plan for arranging for the child’s immediate and temporary safety. Foster parents are likely to have relevant information that will assist a court in determining what is in the child’s best interests. Foster parents may also be interested in adopting a child who has been placed in their care. Does a foster parent have a right to participate in the court proceeding?

    Continue Reading
  • A/N/D, ICPC, and Out of State Parents: Say What?

    If the juvenile court or county department intends to place a child in an abuse, neglect, and dependency (A/N/D) case with a parent who lives outside of North Carolina, does the Interstate Compact on the Placement of Children (ICPC) apply? Continue Reading

  • Standby Me: New Legislation on Standby Guardianship

    Vern and Jane are divorced and have one son, Teddy, who has severe intellectual and developmental disabilities.  When Teddy turns 17 ½ years old, Vern files a petition with the clerk of superior court of Unreal County to have Teddy adjudicated incompetent and an application to be appointed as Teddy’s guardian.  G.S. 35A-1105; G.S. 35A-1210.  After a hearing, the clerk finds clear, cogent, and convincing evidence of Teddy’s incapacity and enters an order adjudicating Teddy incompetent.  G.S.  35A-1112(d).  The clerk appoints Vern as Teddy’s guardian of the person and Jane, who also filed an application to be Teddy’s guardian, as his guardian of the estate.

    Continue Reading
  • Imputing Income: Voluntary Unemployment is Not Enough

    Beware. A child support or alimony order should never contain the word “capacity” or the words “ability to earn” unless it also contains the words “bad faith.”

    Maybe that statement is a little extreme, but it is intended to make a point. Alimony and child support obligations must be determined based on actual present income. Earning capacity rather than actual income can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation. In other words, it is not appropriate for an order to be based on what a person should be earning- or on minimum wage – rather than on what that person actually is earning unless evidence shows the party is acting in bad faith and the court actually includes that conclusion of law in the order.

    Continue Reading

  • Expert Witness Fees as a Civil Cost – An Amendment to the Statute

    I promised to follow up my last post with a discussion of that little change in S.L. 2015-153 to G.S. 7A-314, the witness fee statute. First some background: General Statute 7A-305 sets out the costs assessable in North Carolina civil actions. [Note that liability for costs in a given case is generally determined under G.S. Chapter 6.]   Subsection (d) of 7A-305 lists the expenses of a party that may be recovered as costs. Prior to 2007, there was confusion about whether the list of expenses in 7A-305(d) was exclusive, or whether additional expenses—such as expert witness fees—could also be awarded in the court’s discretion. Then, in July 2007, the statute was amended to make clear that subsection (d) was indeed an exclusive list. The list was also expanded to include several other types of expenses, including “reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.” 7A-305(d)(11)(emphasis added). Soon thereafter, the Court of Appeals held that this very limited category of expert fees could only be awarded if the expert witness was under subpoena.  See Jarrell v. The Charlotte Mecklenburg Hosp. Auth., 206 N.C. App. 559 (2010) (reiterated in Peters v. Pennington, 210 N.C. App. 1 (2011) and Lassiter v. North Carolina Baptist Hospitals, Inc., 761 S.E.2d 720 (N.C. App. 2014)).

    Continue Reading
  • Child Support: When is Health Insurance Available at a Reasonable Cost?

    All civil child support orders must order the child’s parent or other responsible party to provide health insurance for the child if it is available at a reasonable cost. GS 50-13.11(a1). If coverage is not available at a reasonable cost when the support order is entered, the court must order that health insurance be obtained when it becomes available at a reasonable cost. Recent legislation changes how we determine whether insurance is available at a reasonable cost and the 2015 Child Support Guidelines have been amended to reflect the change.

    Continue Reading

  • Teen “Sexting” is a Problem, but is it a Crime?

    Last week, a local news outlet reported that the 17-year-old quarterback of a Cumberland County high school was benched when school officials learned he was under investigation for allegedly sending “sexually explicit” photos of himself to his 16-year-old girlfriend. According to the report, officers took the teenager’s phone while investigating another incident and discovered photos of himself and his girlfriend on the phone. Now, both the teenager and his girlfriend are facing charges for “sexting” in what appears to have been a consensual exchange of nude photos between two teens in a dating relationship. Judging by the string of harsh comments to this report (which use various derogatory words to describe the charges), many people are outraged that such behavior, while improper, is a crime. Instead, they suggest that the behavior is a discipline issue that should be privately addressed by parents at home. In response to these concerns, this post examines the criminal laws in NC that possibly cover sexting and discusses their application to minors.

    Continue Reading

  • North Carolina’s Expert Witness Discovery Rule – Changes and Clarifications

    The General Assembly has amended the rule of procedure in civil cases for discovery of information about another party’s expert witness.  North Rule of Civil Procedure 26(b)(4) has largely been unchanged since 1975. With the amendments made by House Bill 376, S.L. 2015-153, the rule updates the methods of disclosing and deposing experts and implements some explicit work-product-type protections. The Rule now looks more like the corresponding provisions in Federal Rule of Civil Procedure 26 (after that Rule’s own significant round of changes in 2010). The changes to North Carolina Rule 26(b)(4) apply to actions commenced on or after October 1, 2015.  The rule now provides the following:

    Continue Reading
  • Who Is a “Caretaker” in Child Abuse and Neglect Cases?

    This post was amended to reflect changes made to the definition of caretaker that occurred after the post was published by section 1 of S.L. 2015-123* (effective January 1, 2016) and Section 12C.1.(d). of S.L. 2016-94, effective July 1, 2016**  

    In North Carolina, abuse, neglect, and dependency cases determine the child’s status as abused, neglected, or dependent by examining the child’s circumstances rather than determining the fault or culpability of a parent. In re Montgomery, 311 N.C. 101 (1984). In determining a child’s status, social services agencies and trial courts must look at the statutory definitions of abuse, neglect, and dependency. G.S. 7B-101(1), (15), (9). These definitions require the social services agencies and courts to determine who created the child’s circumstances. In abuse and neglect cases, was it the child’s parent, guardian, custodian, or caretaker? In dependency cases, was it the child’s parent, guardian, or custodian? If the child’s circumstances were not caused by a parent, guardian, custodian, or caretaker, the child is not abused, neglect, or dependent. A court order establishes the relationship of guardian [G.S. 7B-600; G.S. 35A-1202 & Article 6] or custodian [G.S. 7B-101(8)] to a child, but who is a caretaker? Continue Reading

  • And Now We Don’t Have to Record Ex Parte DVPO Hearings

    In Stancill v. Stancill, 773 SE2d 890 (NC App, June 16, 2015), the court of appeals held that a hearing on a request for an ex parte DVPO pursuant to Chapter 50B is a “civil trial” within the meaning of GS 7A-198 – a statute that requires that all “civil trials” be recorded when court reporting personnel is unavailable. But the recording requirement for these ex parte orders was short-lived. The General Assembly very quickly amended GS 7A-198(e) to specifically exclude ex parte and emergency hearings conducted pursuant to GS Chapters 50B and 50C on or after July 31, 2015.

    Continue Reading
^ Back to Top