Session Law 2023-114 includes many provisions that change the law governing delinquency cases. This is the first in a three-part series of blogs detailing those changes. It covers the changes to the laws that govern transfer of cases to superior court for trial as an adult and the mandate to assess mental health needs before disposition through the comprehensive clinical assessment (CCA) and care review processes. All of the S.L. 2023-114 changes described in this blog will apply to offenses committed on or after December 1, 2023. Continue Reading
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Issues with Assistance Animals in Summary Ejectment Cases
Both federal and North Carolina fair housing laws make it unlawful for a housing provider to refuse to make a reasonable accommodation that a person with a disability may need to have an equal opportunity to enjoy and use a dwelling. (42 U.S.C. 3601 et seq., G.S. Ch. 41A.) On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) issued FHEO Notice: 2020-01, hereinafter the “Assistance Animal Notice,” to provide guidance about how to assess a request to have an assistance animal in rental housing as a reasonable accommodation under the federal Fair Housing Act (FHA). The Assistance Animal Notice was a response to the rising number of complaints about the denial of reasonable accommodations for assistance animals and concerns about individuals with disabilities wasting their money on so-called “certificates” for assistance animals sold by websites that are not providing health care services by legitimate, licensed health care professionals to the individuals.
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S.L. 2023-106: Parents’ Rights, Who Is a Parent, and Juvenile Abuse, Neglect, and Dependency Cases
On August 16th, the legislature used an override of the Governor’s veto to pass S.L. 2023-106 (S49), a law enumerating the rights of parents regarding their children’s education, health care, and mental health needs. But in addressing a parent’s rights, the law contains some exceptions when the child is alleged to be abused, neglected, or dependent. Notably, the new law defines “parent” as “any person with legal custody of a child, including a natural or adoptive parent or legal guardian.” In cases where a department of social services (DSS) has filed a petition alleging a juvenile is abused, neglected, or dependent, DSS may obtain custody of the juvenile, or the court may ultimately award legal custody or guardianship to a person who is not the juvenile’s parent. As a result, the new law impacts abuse, neglect, and dependency cases. This post discusses the new law as it relates to abuse, neglect, and dependency cases only and is not a comprehensive discussion of the new law generally. Continue Reading
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We Are Sad But Ok, Thank You for Checking On Us
Yesterday was a very difficult day here at UNC Chapel Hill. One of the faculty members in the Department of Applied Physical Sciences in the College of Arts and Sciences, Dr. Zijie Yan, was killed on campus. It was an active shooter situation where the sirens went off, Alert Carolina texts and emails were sent, a large police presence was on campus, and we were on lockdown. Doors were locked and people were isolated in their offices behind their desks for hours. Students were locked down as well. And, yes, we had a large class on site with over 100 local government officials in attendance. Campus was closed but not. It was quiet. Then it was filled with students and employees leaving lock down locations. Today, campus is closed and it will be again tomorrow.
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What’s the Status of North Carolina’s Minor’s Consent Law After S.L. 2023-106?
This post is written by my colleague, Kirsten Leloudis, and is cross-posted on the School’s Coates Canons Blog.
On August 16, 2023, Session Law (S.L.) 2023-106 was passed after a legislative override of the Governor’s veto. Part 1 of the session law establishes a “Parent’s Bill of Rights,” Part 2 outlines new requirements related to parents’ involvement in their child’s education, and Part 3- the focus of this blog post- codifies standards for obtaining parental consent for treatment of minors. Since the law’s passage, many have asked: “What’s the status of North Carolina’s minor’s consent law, G.S. 90-21.5(a), in light of the new requirements in S.L. 2023-106, Part 3 addressing parents’ rights?” Let’s discuss! Continue Reading
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Juvenile Code Does Not Authorize Transfer Based on Consent
One of the more common questions I receive about the transfer of a case from juvenile jurisdiction to the jurisdiction of the superior court for trial as an adult is whether transfer can be ordered based on consent of the juvenile. The issue seems to cross my desk when a juvenile has some charges pending in criminal court and there are unrelated felony charges pending under juvenile jurisdiction. The short answer is no. The statutory structure that governs transfer does not allow for ordering transfer based on consent. Why? Continue Reading
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A New Resource on Expert Witnesses in Juvenile A/N/D and TPR Proceedings
When you think about admitting expert testimony, do any of these questions come to mind?
- How does a witness get qualified to be an expert?
- How certain does an expert need to be to offer an opinion?
- What can an expert testify about (or not)? Causes of physical injuries? The credibility and characteristics of allegedly abused children?
Or maybe you have a physical reaction to words and phrases like Daubert, reliable principles and methods, or scientific, technical, or other specialized knowledge.
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Lifetime Civil No-Contact Order Expanded to Cover Human Trafficking Victims
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. In 2015, the General Assembly enacted Chapter 50D authorizing permanent, non-expiring civil no-contact orders to provide additional protection to victims of sexual violence. Effective August 1, 2023, Chapter 50D was expanded to authorize permanent protection for victims of human trafficking.
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The Adolescent Brain and Mens Rea
Delinquency adjudications and criminal convictions of minors who have been transferred to Superior Court for trial as adults both require that the elements of the offense charged are proved beyond a reasonable doubt, including that the required criminal state of mind, or mens rea, existed. The adolescent mind has been the subject of substantial scientific research. This research grounded several United State Supreme Court decisions related to criminal punishment of minors and when Miranda warnings are necessary. However, the question of how the science of adolescent brain development does or does not connect to the mens rea requirements of various offenses is not well litigated. The North Carolina Court of Appeals dipped a toe in this area in its recent ruling in State v. Smith, __ N.C. App. __ (June 6, 2023). Continue Reading
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UCCJEA: Transitioning from Temporary Emergency Jurisdiction to Home State Jurisdiction in A/N/D Cases
The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) governs a state’s subject matter jurisdiction to hear child custody cases, including abuse, neglect, dependency (A/N/D), and termination of parent rights (TPR). See G.S. 50A-102(4); 50A-106. Without following the jurisdictional requirements of the UCCJEA, the court lacks subject matter jurisdiction. Any orders entered when a court lacks subject matter jurisdiction are void ab initio. In re T.R.P., 360 N.C. 588 (2006). I receive numerous inquiries about the UCCJEA in A/N/D cases. A common question involves North Carolina’s use of temporary emergency jurisdiction and whether it ever becomes initial custody jurisdiction when North Carolina becomes the juvenile’s “home state” after the A/N/D petition has been filed in district court. Earlier this month, the court of appeals answered this question when it published In re N.B., ___ N.C. App. ___ (July 5, 2023). This blog serves as a follow up to my previous blog post about temporary emergency jurisdiction under the UCCJEA. Continue Reading