Appropriate service of process is one of the necessary elements for personal jurisdiction—meaning the documents used to initiate a civil lawsuit, a summons and complaint, must be served on the defendant in a manner that allows the court to exercise authority over her. Any judgment entered without service of process is void unless a defendant makes a general appearance in a case or otherwise waives objection to the lack of appropriate service. For that reason, issues with service of process can result in a judgment being set aside.
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Updated Abuse, Neglect, Dependency – TPR Manual and “Candyland” Are Ready!
It is with great joy and enthusiasm that I am announcing these two updated resources for those of you who work in the area of child welfare.
- Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina (Feb. 2022), otherwise known as “the A/N/D Manual” or “the Manual.”
This February 2022 edition of the Manual is now available on the SOG website, here. This edition replaces the 2019 edition. As those of you who work in this area know, the law is constantly changing either because of legislative changes or appellate opinions interpreting the law. The pace of the changes applying to this legal area is reflected by the fact that this edition was supposed to be a 2021 edition but because of North Carolina Supreme Court opinions published on February 11, 2022, it became the February 2022 edition. This February 2022 edition is current through February 15, 2022 for both appellate opinions issued by the North Carolina appellate courts (most of which are published) as well as legislative changes made through that date. The changes are so significant that you should not rely on any earlier editions of the Manual.
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Parents and Drugs: Takeaways from S.L. 2021-100 and 132, and a Recent U.S. Dept. of Justice Investigation
On October 1, 2021, two laws went into effect that pertain to parents who test positive for controlled substances while involved in juvenile abuse, neglect, or dependency (A/N/D) proceedings. Together, the laws
- dictate what happens to a parent’s court ordered visits following a positive test,
- clarify that participation in Medication-Assisted Treatment is not a violation of an order prohibiting substance use, and
- implicitly acknowledge that parents who may use drugs still have roles to play.
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Court of Appeals Finds No Constitutional Violations Related to Pre-Raise the Age Prosecution in Criminal Court
Were the constitutional rights of defendants who were prosecuted as adults in criminal court for offenses that they committed at ages 16 or 17, and prior to December 1, 2019, violated because the jurisdictional changes under raise the age were not retroactive? The North Carolina Court of Appeals does not think so. The decision in State v. Garrett, 2021-NCCOA-591, answers this question. Continue Reading
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Equitable Distribution: Classification of Student Loans as Marital Debt
Marital debt is debt incurred during the marriage by either or both spouses for the joint benefit of the parties. Huguelet v. Huguelet, 113 N.C. App. 533 (1994). The party asking that the debt be classified as marital has the burden of proving the value of the debt on the date of separation and that the debt was incurred during the marriage for the joint benefit of the parties. Miller v. Miller, 97 N.C. App. 77 (1990).
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Single Transactions and Protective Arrangements: A New Tool in Guardianship Proceedings and a Lot for GALs to Consider
Effective for all incompetency and guardianship proceedings filed after October 1, 2021, S.L. 2021-53 (S 50) created a new statute, G.S. 35A-1121, that enables clerks to authorize a single transaction or protective arrangement—without appointing a guardian. I have received a lot of consults on the new law since it passed. It is not intended to be a magic wand. The law is a tool—one that may prove effective when used in the right situations. To make sure their clients remain protected, GALs need to understand what the law is and is not.
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Hats Off to Newly Certified Magistrates
Begin reading this post by standing up.
Remain standing if you have worked in a position that has required you to interact directly and regularly with members of the public during the pandemic. Otherwise, sit down.
Remain standing if this job has required you and your colleagues to (1) apply changing guidance from the state and federal governments regarding residential evictions, (2) perform marriages, (3) stay abreast of changes in criminal law and procedure, and (4) regularly work nights and weekends. Otherwise, sit down.
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New Resource on Juvenile Transfer Procedure
A new Juvenile Law Bulletin, Transfer of Juvenile Delinquency Cases to Superior Court, is now available. Transfer is the procedure used to move a case that begins as a delinquency matter under the original jurisdiction of the juvenile court to criminal court for trial as an adult. The Bulletin outlines when transfer is allowed, and sometimes required; the varying procedures to use to transfer a case based on age at offense and the offense charged; procedure to follow once transfer is ordered; the remand process; place of confinement; and issues related to the appeal process. This blog provides some highlights of the information in the Bulletin. Continue Reading
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Juveniles in DSS Custody Presenting at Hospital ED for Mental Health Treatment: New Laws and New Court Hearing Possible
Perhaps it is not surprising that juveniles who experience abuse, neglect, or dependency have a higher risk of suffering from mental health issues. These children have experienced trauma, and when they are removed from their homes and families, they further experience loss, separation, and disruption. The National Conference of State Legislatures reports that “[u[p to 80 percent of children in foster care have significant mental health issues, compared to approximately 18-22 percent of the general population.”* According to the American Academy of Pediatrics, “[m]ental and behavioral health is the largest unmet health need for children and teens in foster care.”**
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Nonparent custody claims: Court of Appeals confirms that an evidentiary hearing is not required to determine standing
Consider the situation where a grandparent or other nonparent files a custody action against a parent. The complaint includes allegations regarding the relationship between the nonparent and the child and includes allegations that the parent has waived their constitutional right to exclusive care, custody and control of the child. In response, the parent files an answer and a motion to dismiss the complaint pursuant to Rule 12(b), arguing that the nonparent does not have standing to seek custody of the child. To determine whether the complaint should be dismissed for plaintiff’s lack of standing, does the court need to conduct an evidentiary hearing to determine whether the parent has waived their constitutional right to custody or is the standing determination made on a review of the complaint alone?
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