Personal jurisdiction, as the name implies, refers to the authority of a court over a particular person. In order for a court to have authority over someone in a civil case, three things must exist: (1) effective service of process, (2) a statute allowing the exercise of personal jurisdiction in the case (G.S. 1-75.4, North Carolina’s long-arm statute, is the relevant statute in our state), and (3) compliance with the due process clause of the federal constitution. Continue Reading
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New SOG Bulletin: “When and How Criminal-Defense Attorneys Can Obtain Access to Confidential Child Welfare and Juvenile Abuse, Neglect, and Dependency Records”
I am happy to announce the publication of my new bulletin, “When and How Criminal-Defense Attorneys Can Obtain Access to Confidential Child Welfare and Juvenile Abuse, Neglect, and Dependency Records.” I hope it is of help to anyone needing to determine criminal attorney access to these protected records.
Consider these common scenarios. A criminal attorney learns that a county department of social services (DSS) or equivalent agency has been involved with that attorney’s client and family. Or maybe the attorney believes that the DSS has investigated a report of suspected abuse, neglect, or dependency that involves a witness or alleged victim in the criminal case. How can the criminal attorney access existing child-welfare and juvenile abuse, neglect, and dependency records that may be relevant to the criminal case?
Alternatively, a respondent parent, guardian, custodian, or caretaker in a juvenile abuse, neglect, and dependency (A/N/D) action has been charged criminally. The criminal attorney asks the attorney representing the same individual in the A/N/D matter to share records and information relating to the A/N/D proceeding. What can the A/N/D attorney share with the criminal attorney?
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Attorney fees for contempt in family law cases: Only for a prevailing party?
In Walter v. Walter, decided by the NC Court of Appeals on August 17, 2021, the court vacated an award of attorney fees in a contempt proceeding arising out of an alleged violation of a custody order because the party awarded fees did not prevail in the contempt proceeding. The court in Walter held that a party cannot be ordered to pay attorney fees if not found to be in contempt. Similarly, in McKinney v. McKinney, 253 NC App 473 (2017), the court of appeals reversed the trial court’s award of attorney fees to mother after concluding the trial court’s findings of fact did not support the conclusion father was in contempt for violating a custody order. See also Ruth v. Ruth, 158 NC App 123 (2003)(fees generally available only to prevailing party, except fees can be awarded to moving party when that party fails to prevail only because alleged contemnor complies with order after contempt proceeding initiated but before hearing).
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Raise the Age Legislative Changes
Parts I – IV of Session Law 2021-123 make changes to the statutory structure that raised the age of juvenile jurisdiction to include most offenses committed at ages 16 and 17. The most significant changes relate to new prosecutorial discretion to decline to transfer cases in which the most serious charge is a Class D – Class G felony and the ability to extend the length of jurisdiction when a juvenile is committed to a Youth Development Center (YDC) for a Class A – Class E felony committed at age 16 or 17. The raise the age changes in S.L. 2021-123 are detailed below. Continue Reading
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Legislative Changes Focus on Foster Parents
During the 2021 Legislative session, there have been numerous and significant amendments made to the laws addressing child welfare, most of which are in G.S. Chapter 7B (the Juvenile Code) and became effective October 1st. This is my third post explaining those legislative changes. Today’s post focuses exclusively on legislative changes that relate to foster parents. The issues addressed include the consideration of foster parents for placement at nonsecure custody, their participation in permanency planning hearings, required training, and the creation of a Foster parents’ Bill of Rights.
My earlier blog posts are here (summarizing S.L. 2021-100 (H132)) and here (summarizing S.L. 2021-132 (S693)). As the 2021 Legislative Session continues, more changes may be made, and if that happens, I will post about them as well. Continue Reading
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New SOG Bulletin: “Ethical Dilemmas in Client Representation for DSS Attorneys in North Carolina”
An attorney who represents a department of social services (DSS) in North Carolina faces a variety of unique ethical challenges when it comes to client representation. Who is the attorney’s client? How should the attorney report malfeasance within the agency? A number of factors make these determinations particularly challenging in North Carolina. Continue Reading
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It’s October and Child Welfare Legislative Changes Are in Effect!
As the 2021 Legislative Session continues, many session laws that revised the abuse, neglect, dependency and termination of parental rights (TPR) statutes in the Juvenile Code (G.S. Chapter 7B) became effective on October 1, 2021 (last Friday), unless stated otherwise. Previously, I blogged about S.L. 2021-100, “An Act to Make Revisions to the Juvenile Code Pursuant to Recommendations by the Court Improvement Program,” which you can read here. Today’s post summarizes S.L. 2021-132 (S693), which makes additional significant amendments to the Juvenile Code.
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There’s a New G.S. 35A-1121 in Town
John was adjudicated incompetent in a court proceeding three years ago. The court found that John lacked the capacity and needed the assistance of a guardian. At the time of the adjudication, John did not own any assets that required management by a guardian of the estate. Therefore, the court appointed only a guardian of the person to assist John in making decisions related to his health care, housing, and other personal matters. Last year, John was entitled to receive a stimulus payment from the government. His guardian of the person is not authorized by law to negotiate the check and use the funds on his behalf. Prior to October 1, 2021, the guardian of the person (or some other interested person) would have to go through a multi-step process to have the court appoint a guardian of the estate who could use the funds on John’s behalf. This process may have included multiple court hearings and modifications of the guardianship to appoint and then discharge a guardian of the estate. In addition to taking up time, it would create expenses for John in the form of court costs, a bond, and, in some cases, attorneys’ fees. Those expenses could ultimately be more costly than the amount that John was entitled to receive from the stimulus payment.
As of October 1st, there is an alternative path for John under the new North Carolina statute, G.S. 35A-1121. It authorizes the court to order a single protective arrangement or single transaction for the benefit of a minor or incompetent person where it is established in a proper proceeding that a basis exists for the appointment of a guardian for a minor or an incompetent person. G.S. 35A-1121(a). “Incompetent person” includes adults, emancipated minors, and minors age 17 ½ or older who are adjudicated incompetent. G.S. 35A-1202(11). This post discusses some of the key features of G.S. 35A-1121, which was enacted as part of Session Law 2021-53. Continue Reading
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The Impact of S.L. 2021-132 on the Confidentiality of Child Protective Services Information and Records
This post is also cross posted on our Coates Canon blog.
As the 2021 Legislative Session continues, one new session law that addresses child welfare, S.L. 2021-132, has raised a number of questions for county department of social services (“DSS”) directors and attorneys. This new session law has many elements related to child welfare court proceedings, which my colleague Sara DePasquale will address in a separate blog post. This blog focuses solely on Section 1.(c) of S.L. 2021-132, which amends G.S. 7B-302 – a law that addresses confidentiality of child protective services (“CPS”) records. The amendment allows members of the North Carolina General Assembly to access confidential social services information and records in certain limited instances. Continue Reading
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From 6 to 10: New Minimum Age for Juvenile Delinquency and Undisciplined Jurisdiction
Session Law 2021-123 includes several significant changes to the law that governs juvenile delinquency cases. This post will describe one of those changes—an increase in the minimum age for delinquency and undisciplined cases. As I write this post, that age is set at 6 years old. G.S. 7B-1501(7)a., -1501(27)a. Beginning with offenses committed on or after December 1, 2021, the minimum age for most acts of delinquency and for all undisciplined behaviors will be 10 years old. S.L. 2021-123 § 5.(b). This change comes with limited exceptions that provide for delinquency jurisdiction for some offenses committed at ages 8 and 9, a new procedure for juvenile justice to work with children between the ages of 6 and 10 through a juvenile consultation process, and new law related to the role of parents in juvenile consultation matters. This post walks through each of these components. Continue Reading