Believe it or not, there is new juvenile delinquency law to wrap your head around other than the Juvenile Jurisdiction Reinvestment Act, which will raise the age of juvenile court jurisdiction as of December 1, 2019. The 2019 legislative session resulted in several new laws related to juvenile delinquency cases that
- change the capacity to access teen court,
- establish new rules regarding photographing of some juveniles at the time of a show-up,
- create parental access to counsel in the context of Department of Social Services (DSS) placements as delinquency and undisciplined dispositions,
- establish new information sharing capacity between attorneys representing juveniles in child welfare and juvenile justice matters, and
- ease requirements for victims of human trafficking to access a juvenile expunction.
There is also an entirely new Article added to Chapter 7B of the General Statutes devoted to the rights of victims of delinquent acts. I will provide an overview of the delinquency-related provisions of the newly enacted legislation below. You can also access a bulleted summary of the 2019 enacted delinquency legislation on the juvenile law microsite. Several of these new statutes touch on other areas of law, such as child welfare and criminal procedure. Those provisions are outside the scope of this blog post and the bulleted summary.
Session Law 2019-41 provides a straightforward change to the way that teen court is allowed to operate across North Carolina. Teen court is a tool that can be used by juvenile court counselors to divert infraction or misdemeanor offenses from the juvenile petition process. G.S. 7B-1706. Prior to enactment of this legislation, juveniles were only allowed to be referred to teen court once. That restriction is lifted under the new legislation. Therefore, juveniles may now be referred to teen court multiple times. The existing restrictions on the types of offenses that can be referred to teen court (including a bar on offenses involving driving while impaired, Class A1 misdemeanors, an assault in which a weapon was used, and controlled substance offenses other than simple possession of a Schedule VI drug or alcohol) remain in place. This legislation took effect on June 21, 2019.
Juvenile Photographs at Show-ups
Generally, nontestimonial identification procedures cannot be used with juveniles absent a court order or express statutory authorization. G.S. 7B-2103. The Court of Appeals established an exception to this rule for show-ups in In re Stallings, 318 N.C. 565 (1986). The exception allows for one-on-one show-ups that are conducted shortly after an offense has been committed to include a juvenile as long as the show-up is not conducted in a manner that is so suggestive that it becomes unreliable. While juvenile show-ups are therefore sometimes allowable, there was a conflict with the procedure required for show-ups under the criminal procedure law and the statutory rule that juveniles cannot be photographed absent specific statutory authority or the issuance of a court order. The criminal procedure act requires that investigators photograph a suspect at the time and place of a show-up. G.S. 15A-284.52(c1)(3).
Session Law 2019-47 addressed this conflict by establishing express statutory authority for photographing certain, but not all, juveniles at the time and place of a show-up. Pursuant to a new provision added to the criminal procedure law, any juvenile age 10 or older who is reported to have committed a nondivertible offense (G.S. 7B-1701) or common law robbery must be photographed at the time and place of any show-up. Any such photograph must be retained or disposed pursuant to the existing provisions in the Juvenile Code (G.S. 7B-2108) and if a petition is filed, law enforcement is required to make written certification to the court of the destruction of records under G.S. 7B-2108(6). Photographs taken under this new law are not public records, must be kept separate from adult records, must be withheld from public inspection, and absent a court order, can only be examined by a statutorily prescribed list of individuals. This law took effect on June 26, 2019.
Parental Access to Counsel and Information Sharing Between Attorneys
As those of you who read the juvenile law bulletin that Sara DePasquale and I authored in July of 2019, Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does That Work?, juveniles are sometimes placed in DSS custody as a dispositional alternative in delinquency matters. G.S. 7B-2506(1)(c). Juveniles can also be placed in DSS custody as a dispositional alternative in an undisciplined proceeding. G.S. 7B-2503(1)(c). In both instances, the dispositional statutes require that review and permanency hearings be held pursuant to the requirements as set out in G.S. 7B-906.1, a statute contained in the abuse, neglect, and dependency law.
When a 7B-906.1 hearing arises as a result of an abuse, neglect, or dependency matter, the parents involved in that matter have a right to representation by counsel. However, prior to enactment of this legislation, there was no analogous right to counsel for parents during a 7B-906.1 hearing when the underlying matter through which the juvenile was placed in DSS custody was a delinquency or undisciplined matter. Session Law 2019-33 remedies this disparity by establishing an entitlement to court-appointed counsel for parents in 7B-906.1 hearings held for juveniles who are placed in DSS custody pursuant to orders of disposition resulting from undisciplined and delinquency adjudications.
This same legislation also creates new legal authority for a guardian ad litem attorney advocate who is appointed in an abuse, neglect, or dependency matter to share confidential information about the juvenile in that matter with that juvenile’s attorney who is appointed or retained in a delinquency proceeding or an undisciplined matter. This new capacity extends the ability of a juvenile’s defense counsel to gather information related to the juvenile’s child welfare history. All the provisions of this legislation will take effect on October 1, 2019.
Juvenile Expunction for Victims of Human Trafficking
Session Law 2019-158 enacts recommendations made by the North Carolina Human Trafficking Commission. Among its provisions are changes to G.S. 7B-3200, easing the requirements necessary to file for and receive expunction of a juvenile adjudication if participation in the adjudicated offense was a result of having been a victim of human trafficking or a victim of a severe form of human trafficking. Usually individuals must show that at least 18 months have passed since their release from juvenile court jurisdiction and that they have not be adjudicated or convicted of any felony or misdemeanor offense, other than a traffic violation, since adjudication in order to be eligible for a juvenile expunction. The new law removes these requirements for juveniles for whom participation in their adjudicated offense was a result of having been a victim of human trafficking. This law became effective on July 1, 2019.
Last, but certainly not least, Session law 2019-216 added a new Article 20A, “Rights of Victims of Delinquent Acts,” to Chapter 7B of the General Statutes. These new provisions operationalize the victim rights that were added to the North Carolina State Constitution following voter ratification of changes to Article 1, Section 37 in the 2018 general election. My colleague, Shea Denning, has blogged about some of these provisions and the question of what happens when the rights of the victim conflict with the rights of the defendant.
The new law adds responsibility for ensuring various rights of victims to district attorneys, courts, and the Division of Adult Correction and Juvenile Justice. The North Carolina Conference of District Attorneys (NCCODA) has created several sample documents to support district attorneys in meeting these requirements. They include
- a model victim information sheet through which the victim can opt into various notifications to which they are entitled,
- a model victim information letter that includes the information that must now be provided by district attorneys to certain victims of acts of delinquency within 72 hours of the filing of a petition, and
- a model disposition letter that provides the information to be provided to victims following case disposition.
Prosecutors who are interested in obtaining these materials can do so by contacting the NCCODA.
The Delinquency Statutory Landscape
All of these new statutes will need to be implemented at the same time that the field is preparing to implement raise the age. This is a time of significant change in the legal landscape of North Carolina delinquency law. Registration for the upcoming raise the age workshops has been robust, and it is encouraging that so many of you are looking to be well-prepared for the changes. I am continuing to develop other methods and materials to support folks in the field through the transition. Please feel free to let me know if you have ideas about materials or other learning opportunities that would be helpful in your work as you digest the many changes to the statutory landscape.