• Child Custody: Denying Visitation to a Parent in a Case Between Parents

    In this previous post, Child Custody: Denying or Significantly Limiting a Parent’s Visitation (March 18, 2016), I wrote about a trial court’s authority to deny ‘reasonable’ visitation to a parent in a child custody proceeding between two parents. I mentioned in that post the conflict between two opinions from the NC Court of Appeals regarding whether a trial court must consider the constitutional rights of a parent before denying that parent reasonable visitation in such cases. Those two conflicting opinions are Moore v. Moore, 160 NC App 569 (2003)(because a complete denial of visitation is ‘tantamount to a termination of parental rights’, the trial court must apply the constitutional analysis set forth in Petersen and Price before reaching a decision about a child’s best interest) and Respess v. Respess, 232 NC App 611 (2014)(the constitutional analysis set forth in Petersen and subsequently clarified by Price v. Howard, 346 NC 68 (1997), applies in cases between a parent and a non-parent and has no application in custody cases between two parents).

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  • Expunction Relief for “Doughnut Hole” Youth

    Much of the conversation at one of the first Juvenile Jurisdiction Advisory Committee meetings I attended centered on “doughnut hole” youth. The meeting participants were discussing the long pause between when raise the age legislation passed in June of 2017 until the time it would take effect in December of 2019. Many 16- and 17-year-old youth would continue to be convicted in criminal court for things that the legislature had already determined should be juvenile offenses for youth their age. Caught in between passage and implementation, these kids were in the “doughnut hole.” The legislature included a remedy for these youth, and many others, in the Second Chance Act (S562) that was ratified on June 17, 2020. Certain misdemeanor and Class H and I felony convictions for offenses committed before raise the age took effect and when the person was 16 or 17, can now be expunged. This new expunction opportunity is available to any person with an existing conviction from the age of 16 or 17 that would now fall under juvenile jurisdiction and not just the young people who were caught in the doughnut hole. Continue Reading

  • Will We See More APS Petitions During COVID-19? What GALs Need to Know

    I previously published on this blog Guardian ad Litem Attorney Challenges in the Era of COVID-19, which explored the complications the current pandemic has posed for Guardians ad Litem (“GALs”) in Chapter 35A incompetency and guardianship proceedings. Given these challenges and other developments, GALs may see an increase in the number of Adult Protective Service (“APS”) petitions being filed under Chapter 108A. This could be good news for GALs and their clients in some situations; however, GALs also need to be aware of the potential risks that could go along with a rise in APS petitions.

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  • The Child Welfare System and Race

    The gravity of the events of recent weeks stemming from the highly publicized killings of several black citizens, including George Floyd, Ahmaud Arbery, Breonna Taylor, and Rayshard Brooks, has led for a call to acknowledge and respond to systemic racism in the United States. Initially, the focus was on the actions of the police, but the call to action has grown, asking Americans to address inequities based on race as a whole within our country. That begs the question, is race a factor in the child welfare system? The answer is yes. Continue Reading

  • Quick Reference Guide to Orders from the Chief Justice and the North Carolina Supreme Court Related to COVID-19

     

    Since the start of the pandemic, the Chief Justice of the North Carolina Supreme Court and the North Carolina Supreme Court have issued a number of directives impacting the court system.  Instead of doing a heavy substantive post today, I thought I would share a quick reference chart I’ve been using to keep track of these directives, their effect based on the most recent order issued, the dates of the order containing each directive, and their expiration date. Continue Reading

  • Expiration and Extension of Federal and State Limits on Foreclosures in North Carolina

    UPDATE (June 23, 2020): 

    • On June 17, 2020, the Federal Housing Finance Agency (FHFA) announced that Fannie Mae and Freddie Mac will extend their single-family moratorium on foreclosures through at least August 31, 2020.
    • On June 17, 2020, the U.S. Department of Housing and Urban Development through the Federal Housing Administration announced an extension of its foreclosure moratorium through August 31, 2020 for homeowners with “FHA-insured Title II Single Family forward and Home Equity Conversion (reverse) mortgages.”
    • On June 17, 2020, the Department of Veterans Affairs announced an extension of the foreclosure moratorium on VA-guaranteed loans through August 31, 2020.
    • On June 19, 2020, the U.S. Department of Agriculture announced an extension of the foreclosure moratorium for all USDA Single Family Housing Guaranteed Loan Program loans through August 31, 2020.

    A colleague joked last week that you will get whiplash trying to track the federal and state limits imposed on foreclosures over the past few months.  Honestly, I think you would get whiplash just reading the updates to my prior blog post on the topic.  Instead of adding yet another update to that post, I thought I’d use this post to track where we are now – which protections have expired (or will soon expire) and which ones have been extended.

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  • Juvenile Justice Pandemic Lessons

    The Juvenile Jurisdiction Advisory Committee (JJAC) met on May 15th. The meeting began with a presentation from William Lassiter, Deputy Secretary for Juvenile Justice. While the goal of the presentation was to provide data on trends since implementation of raise the age and the resulting resource needs, the presentation included information and data about juvenile justice system trends during this unprecedented pandemic. The data left me wondering—can changes in juvenile justice system utilization during the pandemic teach us lessons for the functioning of the system outside of a pandemic? Continue Reading

  • Summary Ejectment: Will the CARES Act Solve the Backlog Problem?

    On June 2 Chief Justice Beasley’s order continuing pending actions – including actions for summary ejectment – will expire. While that expiration date may be extended, it seems more likely that small claims magistrates will once again be hearing cases after that date, albeit under quite different conditions.

    In this post  am going to talk in considerable detail about a new federal law that affects eviction cases in North Carolina (and every other state). This law establishes an eviction moratorium and new notice requirements on two different types of “covered properties:” housing subsidized by participation in a federal assistance program, and housing financed by a federally-backed mortgage loan. Significant questions exist about how these provisions should be applied in North Carolina’s courts.

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  • Temporary Changes to Service on the Respondent in Incompetency Proceedings

    A heightened level of service is required on a respondent to an incompetency proceeding in North Carolina.  G.S. 35A-1109 requires copies of the petition (SP-200) and the notice of hearing (SP-201) to be personally served on the respondent (the alleged incompetent adult).  As my colleague, Ann Anderson, discussed in an earlier post, because the use of private process servers is very limited in North Carolina, personal service is completed on the respondent by the sheriff in most cases.  Under the version of G.S. 35A-1109 in effect prior to May 4, 2020, service was not proper if the notice and petition were sent by FedEx, UPS, or regular mail or left with a family member at the respondent’s home or with a caregiver at a facility where the respondent resides. This heightened requirement of service on the respondent ensures that the respondent knows of the proceeding and knows the location, date, and time of the hearing. It reflects the significant impact an adjudication of incompetency has on a person’s rights to make decisions about his or her life and property. Continue Reading

  • Remote Delinquency Proceedings Not Otherwise Authorized in Statute

    Last month I blogged about the one type of delinquency hearing for which remote proceedings are expressly authorized in statute—hearings on continued custody. This blog analyzes the legal and practical considerations for holding other types of delinquency proceedings through the use of audio and video technology. It will provide an overview of the authority to hold other delinquency proceedings remotely, discuss special considerations related to delinquency proceedings, and address what it all means for first appearances, probable cause hearings, transfer hearings, adjudication hearings, and dispositional hearings. Continue Reading

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