Suppose mother files an action for custody when North Carolina is the home state of the child and mother and father both reside in North Carolina. Temporary orders are entered in the case and a couple of years go by without a permanent order being entered. When mom requests a trial date for entry of a permanent order, dad files a motion to dismiss the case for lack of jurisdiction because mom, the child and dad all now reside in other states. No one resides in North Carolina. Should the case be dismissed?
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Rules of Conduct Created for North Carolina Magistrates
This post was written by UNC School of Government faculty member Tom Thornburg.
Following years of discussion and drafts, a formal Rules of Conduct for Magistrates was promulgated by the North Carolina Administrative Office of the Courts (AOC) effective October 1, 2021.
Statutory Authorization
In June, Session Law 2021-47 Section 13.(a) authorized the AOC to prescribe rules of conduct for all magistrates via a new G.S. 7A-171.3. It said that the rules of conduct shall include rules governing standards of professional conduct and timeliness, required duties and responsibilities, methods for ethical decision making, and any other topic deemed relevant by the AOC.
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The Latest Guide in a Series: The First Seven Days
The UNC School of Government’s Public Defense Education group is excited to announce the newest entry in a series of practice guides, The First Seven Days, by Timothy Heinle, Civil Defender Educator. The guides offer practical tips and strategies for respondent’s attorneys in various civil proceedings to use during the first several days of representation. The ideas suggested in the guides are designed to help busy attorneys hit the ground running in ways that reduce stress for the attorney and improve representation for the client.
The newest entry in the series is The First Seven Days as a Parent Defender. Strategies are explored that will improve client representation and help attorneys better manage their workloads and Continue Reading
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Legislative Changes to Required Mental Health Assessments Before Entering a Delinquency Disposition: New Provisions of G.S. 7B-2502
This is the third in a series of blogs about the changes contained in Session Law 2021-123. It summarizes the new requirement for court ordered mental health assessments, including a new care review team process. (see Raise the Age Legislative Changes and From 6 to 10: New Minimum Age for Juvenile Delinquency and Undisciplined Jurisdiction for previous blogs about the other provisions in S.L. 2021-123).
A steady stream of appellate caselaw, beginning with In re E.M., 263 N.C.App. 476 (2019), established that G.S.7B-2502(c) requires the trial court to refer a juvenile who is adjudicated delinquent to the local management entity (LME) prior to ordering a disposition when there is any amount of evidence that the juvenile has a mental illness. The purpose of the referral is for the LME to conduct an interdisciplinary evaluation and mobilize resources. Beginning with petitions filed on December 1, 2021, this statutory mandate is changing. The court will be required to order mental health assessments under different circumstances and, in some cases, to order a care review team after the assessment is completed. Continue Reading
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Update: Specific Personal Jurisdiction at the U.S. Supreme Court and the N.C. Court of Appeals
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