Someone once told me that to get people really interested in a meeting you need to either make it free to attend or provide food. Well, thanks to funding from the North Carolina Judicial College, we are doing both for an upcoming workshop at the School of Government. It will be held March 2-3, 2023, and will bring together diverse stakeholders from around North Carolina to begin the process of forming and developing adult protection multidisciplinary teams (MDTs). Each team may send up to seven people to participate in the workshop. The application period is now open and runs through January 13, 2023. You can learn details about the workshop and apply here.
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Incapacity to Proceed (G.S. Chapter 15A) and Incompetency (G.S. Chapter 35A): Apples and Oranges?
Incapacity to proceed under North Carolina General Statutes (G.S.) Chapter 15A and incompetency proceedings under G.S. Chapter 35A involve, at least in part, a court inquiry into someone’s cognitive abilities. Incapacity to proceed is narrowly focused on a person’s cognition within a criminal legal proceeding. Incompetency is a bigger picture analysis, more broadly focused on the individual’s life and needs, with a bit of forward-looking involved. In that way, incompetency is concerned with both a person’s cognitive abilities and their functioning.
These proceedings are separate and distinct from one another. Yet, if a client has history or present involvement in both, the client’s attorney in one proceeding should know about and understand the other. That attorney may want, for example, to access information or introduce evidence from the other proceeding. The attorney will want to consider issues such as information sharing and confidentiality, and the admissibility or other uses of records from one proceeding in the other.
These issues may be the subject of future posts. First, however, we need to understand incapacity to proceed under G.S. Chapter 15A and incompetency under G.S. Chapter 35A. This post provides a primer on incapacity and incompetency proceedings and compares the standards for each. Continue Reading
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The Rights of the Parent Who Does Not Execute a Relinquishment
This blog post builds on my last post: A Guide to Relinquishments and Post-Relinquishment Review Hearings. If you remember, relinquishments involve the voluntary transfer of physical and legal custody of a minor child to an agency (a department of social services (DSS) or licensed private child-placing agency) that accepts the relinquishment for the purposes of the child’s adoption. See G.S. 48-1-101(15); 48-3-705(b). A relinquishment is executed by a parent or by a guardian of the person appointed by the clerk of superior court under a G.S. Chapter 35A proceeding.
What happens when one parent executes a relinquishment but the other parent wants custody of their child? North Carolina statutes are silent; however, case law recognizes that the non-relinquishing parent has rights. Continue Reading
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Rule 52(a)(2) and the exception-to-the-exception: why certain orders shouldn’t include findings of fact, even when requested
Trial court judgments in bench trials must contain findings of fact and conclusions of law. Orders disposing of motions, on the other hand, normally only need findings and conclusions if a party requests that the trial court make them. There are some situations, however, where a trial court should not make findings of fact in an order, even if a party requests them. This is because of the trial court’s particular role in those specific proceedings and the possibility for meaningful appellate review of the trial court’s orders without the inclusion of findings and conclusions. This post explores this exception-to-an-exception regarding findings and conclusions for certain dispositive motions.
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Assessments in Delinquency Cases: When Can They be Done and Are They Confidential?
One of the unique features of the juvenile justice system is its statutory focus on identifying the needs of juveniles and resolving matters to provide “appropriate rehabilitative services to juveniles.” G.S. 7B-1500(2)b. In addition to protecting public safety, dispositions should include “an appropriate plan to meet the needs of the juvenile.” G.S. 7B-2500. The caselaw and statutes that govern one form of assessment in delinquency cases—the comprehensive clinical assessment (CCA)—have undergone rapid change in the last few years. Other assessments, such as assessment for problematic sexual behavior or trauma-focused assessments, may also be needed in certain cases. Questions abound regarding when assessments can occur and what confidentiality law applies to them. This new infographic provides a high-level overview of the law that addresses these questions.
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Amendments to Chapters 50B and 50C to take effect December 1, 2022
Legislation enacted during this past summer is set to take effect soon. S.L. 2022-48 addressing the renewal of domestic violence protective orders and S.L. 2022-47 addressing the process for authorized magistrates to issue ex parte domestic violence protective orders and ex parte civil no-contact orders both take effect December 1, 2022.
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Ongoing Support for Adult Protection Multidisciplinary Teams Now Available Through the School of Government Help Desk
Over the past few years, faculty and staff at the School of Government collaborated with public officials across the state to develop resources and tools related to the growth and development of adult protection multidisciplinary teams (MDTs). An adult protection MDT is a group of professionals in a geographic region who work together toward common goals related to preventing and responding to abuse, in any of its forms (physical, emotional, and sexual abuse; self-neglect and caretaker neglect; and exploitation, including financial exploitation).
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The School of Government is looking for a new civil Legal Research Associate
The School of Government is seeking to hire a full-time Legal Research Associate. The Legal Research Associate will be responsible for performing legal research, analysis, and writing to support faculty working in the fields of family law, civil law, estates and special proceedings, and judicial authority and administration. The Legal Research Associate will be involved with research, analysis, writing, cite-checking, and other tasks related to two important publications produced by the School of Government: the District Court Judges’ Benchbook and the Clerk of Superior Court Manual Series.
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Violation of an Undisciplined Court Order Resulting in Delinquency Adjudication
Is it legally permissible to adjudicate a juvenile delinquent based on that juvenile’s violation of an order for protective supervision in an undisciplined matter? The North Carolina Court of Appeals says yes. The court upheld the practice of adjudicating a juvenile delinquent following an admission to indirect contempt related to violation of an order issued in an undisciplined case in In re B.W.C., 2022-NCCOA-590 (September 6, 2022). This post details the court’s holding and explores ramifications of the decision. Continue Reading
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A New Foreclosure Resource Available for Clerks of Superior Court
A power of sale foreclosure under North Carolina General Statutes Chapter 45 is intended to provide an efficient and expeditious alternative to a judicial foreclosure. In re Adams, 204 N.C. App. 318, 321 (2010). The authority of a lender to elect a power of sale foreclosure (sometimes referred to as a “non-judicial foreclosure”) typically arises based on an agreement between the borrower and the lender when a mortgage loan is made and is frequently evidenced by the power of sale provision in the deed of trust. Whereas a judicial foreclosure requires the filing of a civil action in district or superior court, a power of sale foreclosure is filed before the clerk of superior court. G.S. 45-21.16(a). A trustee, who is a fiduciary and a neutral party, files a notice of hearing to initiate the proceeding. G.S. 45-21.16(a), (c)(7)b. If after a hearing the clerk finds the existence of six factors, then the clerk enters an order authorizing the foreclosure sale. G.S. 45-21.16(d). The act of the clerk in finding or refusing to find the existence of the six factors is a judicial act. G.S. 45-21.16(d1).
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