• Incompetent Wards and the Sex Offender Registry

    I received an interesting question recently when I taught about the intersection of criminal defense and Chapter 35A incompetency. Suppose a person is adjudicated incompetent in a Chapter 35A proceeding and a guardian is appointed. Suppose that same person had been convicted of a crime requiring registration as a sex offender and compliance with the other obligations of Chapter 14, Article 27A. The person is required to register changes to their address (including providing notice to law enforcement of an intention to move out-of-state), to their academic and employment status, and to notify the State of changes to their name or online identifiers, including e-mail addresses. G.S. 14-208.7; G.S. 14-208.9. What effect does declaration of incompetency have on these registration requirements? Who is responsible for ensuring that the incompetent adult complies with these registration obligations—the adult or their guardian?

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  • Court of Appeals Addresses Temporary Suspension of Supervised Visits in an A/N/D Order

    Earlier today, the Court of Appeals published In re K.M., an opinion that examines a trial court’s permanency planning order awarding supervised visitation between a mother and her child but temporarily suspending that visitation because of the COVID-19 pandemic. For more than a year, pandemic restrictions have been imposed by state and local orders as well as by decisions made by individual businesses and agencies. These restrictions have impacted some court orders of visitation between parents and children that were either in effect or entered during this period. Most often, the impact has resulted in the reduction of a parent’s time with their child – either by suspending in-person visits, converting in-person visits to electronic communication, or reducing the length or frequency of visits. Questions about the appropriateness of and/or authority to make those changes to visitation orders with or without court approval have been raised. Today’s appellate decision is the first opinion that discusses this issue. However, the basis for a temporary suspension of visits is not necessarily unique to the COVID-19 pandemic. This opinion may provide guidance for the suspension of visits generally.   Continue Reading

  • Jurisdiction Over Parents in Delinquency Cases When the Juvenile is 18 or Older

    Does the court have authority over parents of juveniles who are respondents in delinquency matters once the juvenile turns 18? This question has come up repeatedly as practitioners across North Carolina continue to implement the Juvenile Jurisdiction Reinvestment Act (JJRA), the law that brought the vast majority of youth who commit offenses at ages 16 and 17 under juvenile court jurisdiction. The short answer is—yes. However, that fact does not mean that this jurisdictional law is without complications. This blog explains why the new jurisdictional laws have led to increased numbers of 18- and 19-year-olds under juvenile court jurisdiction, the court’s authority over the parents of those youth, and complications related to this jurisdictional authority over parents of people who are legally adults. Continue Reading

  • Moratorium on Aging Out of the Foster Care 18-21 Program – Get the Word Out!

    The last 14 months have encompassed a year like no other because of COVID-19. As a country, we have experienced unimaginable loss of life. In our own communities and lives, we have transitioned to a new normal – one that feels more like a sci fi movie plot than our actual reality. But, reality it has been. Thankfully, we appear to be slowly moving our way back to what was once familiar. As we live in this pandemic, laws responding to the impact of COVID 19 have been passed by Congress and our own state. At the end of December 2020, Congress passed a COVID relief bill – the Consolidated Appropriations Act. There are components of that Act that have been heavily reported on – the stimulus checks and unemployment benefits for example.

    Did you know that same federal law imposed a moratorium on young adults aging out of extended foster care and modifies the eligibility terms for participation in that program? In North Carolina, that program is the Foster Care 18-21 Program. What does that mean for those young adults? Do you know a young adult who was terminated from the program this calendar year? They may opt back in. Continue Reading

  • The TPR Dispositional Stage, the Juvenile’s Best Interests, and the N.C. Supreme Court

    Since January 1, 2019, termination of parental rights (TPR) orders are appealed directly to the North Carolina Supreme Court. In August 2019, the Supreme Court published its first appellate opinions under this new TPR appellate procedure. Between August 2019 and today, the Supreme Court has decided 134 TPR opinions, all of which are published. Each of those published opinions from our state’s highest court established or reinforced a precedent. Perhaps because of that, new and old arguments have been raised before the Supreme Court in those TPR appeals. This post focuses on what the Supreme Court has held when addressing the dispositional stage of the TPR. Continue Reading

  • Questioning Youth at School: When is it a Custodial Interrogation?

    When does questioning of a middle school student by the principal and in the presence of the school resource officer (SRO) constitute a custodial interrogation? The Court of Appeals of North Carolina issued a decision last week, In re D.A.H. ___ N.C. App. ___, 2021-NCCOA-135 (April 20, 2021), that details the legal analysis necessary to answer this question. The decision reviews the unique characteristics and law related to schoolhouse questioning and identifies seven factors most relevant to determining whether a juvenile is in custody and three factors most relevant to determining whether questioning is an interrogation. The application of this analysis to the facts of the case offers an important takeaway—the legal analysis must focus on an objective reasonable child standard and not on a particular child’s subjective familiarity with an SRO who is regularly present in the school environment. Continue Reading

  • The Initial Guide in a New Series: The First Seven Days

    The UNC School of Government’s Public Defense Education group is excited to announce a new series of practice guides, The First Seven Days, by Timothy Heinle, Civil Defender Educator. The guides offer practical tips and strategies for respondent’s attorneys in various civil proceedings to use during the first several days of representation. The ideas suggested in the guides are designed to help busy attorneys hit the ground running in ways that reduce stress for the attorney and improve representation for the client.

    The first entry in the series is The First Seven Days as a Guardian ad Litem in an Incompetency Proceeding. It includes ideas on creating files, client outreach, investigation tools, report writing, and more. Guardian ad litem attorneys in Chapter 35A proceedings can obtain the guide in three ways. Continue Reading

  • Child Support: Extraordinary Expenses in Guideline Cases

    The North Carolina Court of Appeals recently affirmed the trial court order in Madar v. Madar, (Dec. 31, 2020), that required both parents to pay costs associated with their child’s mental health treatment in a residential treatment facility in addition to their basic child support obligation pursuant to the Child Support Guidelines. The court held that the Child Support Guidelines give the trial court the discretion to determine when parents should be ordered to pay such ‘extraordinary expenses’ as part of their child support obligation. Because ordering the payment of extraordinary expenses does not constitute a deviation from the Child Support Guidelines, a trial court is not required to make findings of fact to support its decision that the expenses are reasonable and necessary or that the parties have the ability to pay.

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  • Emergency Directives Again Renewed; Legislation to Permanently Authorize Remote Hearings Passes Senate

    Chief Justice Paul Newby issued an order on Friday, effective today, extending emergency directives currently in place for an additional thirty days to in light of the ongoing COVID-19 pandemic.

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  • To Be or Not to Be: How to Know When a Parent Attorney in a TPR Is Provisional Counsel and What That Means for Withdrawing

    Consider the common scenario in which a proceeding under Article 11 of G.S. Chapter 7B is filed to terminate a parent’s rights to their child. How and when an attorney is appointed for the respondent parent in a termination of parental rights proceeding (TPR), whether the attorney is provisional or confirmed, and how the attorney may withdraw, depends on a few factors. Ongoing confusion on these points has led to several appeals in recent years, including a new ruling by our Supreme Court. See In re K.M.W., 376 N.C. 195 (2020). This post reviews the governing principles under North Carolina case law and statutes. Continue Reading

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