Since January 1, 2019, termination of parental rights (TPR) orders are appealed directly to the North Carolina Supreme Court. In August 2019, the Supreme Court published its first appellate opinions under this new TPR appellate procedure. Between August 2019 and today, the Supreme Court has decided 134 TPR opinions, all of which are published. Each of those published opinions from our state’s highest court established or reinforced a precedent. Perhaps because of that, new and old arguments have been raised before the Supreme Court in those TPR appeals. This post focuses on what the Supreme Court has held when addressing the dispositional stage of the TPR. Continue Reading
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Questioning Youth at School: When is it a Custodial Interrogation?
When does questioning of a middle school student by the principal and in the presence of the school resource officer (SRO) constitute a custodial interrogation? The Court of Appeals of North Carolina issued a decision last week, In re D.A.H. ___ N.C. App. ___, 2021-NCCOA-135 (April 20, 2021), that details the legal analysis necessary to answer this question. The decision reviews the unique characteristics and law related to schoolhouse questioning and identifies seven factors most relevant to determining whether a juvenile is in custody and three factors most relevant to determining whether questioning is an interrogation. The application of this analysis to the facts of the case offers an important takeaway—the legal analysis must focus on an objective reasonable child standard and not on a particular child’s subjective familiarity with an SRO who is regularly present in the school environment. Continue Reading
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The Initial Guide in a New Series: The First Seven Days
The UNC School of Government’s Public Defense Education group is excited to announce a new 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 first entry in the series is The First Seven Days as a Guardian ad Litem in an Incompetency Proceeding. It includes ideas on creating files, client outreach, investigation tools, report writing, and more. Guardian ad litem attorneys in Chapter 35A proceedings can obtain the guide in three ways. Continue Reading
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Child Support: Extraordinary Expenses in Guideline Cases
The North Carolina Court of Appeals recently affirmed the trial court order in Madar v. Madar, (Dec. 31, 2020), that required both parents to pay costs associated with their child’s mental health treatment in a residential treatment facility in addition to their basic child support obligation pursuant to the Child Support Guidelines. The court held that the Child Support Guidelines give the trial court the discretion to determine when parents should be ordered to pay such ‘extraordinary expenses’ as part of their child support obligation. Because ordering the payment of extraordinary expenses does not constitute a deviation from the Child Support Guidelines, a trial court is not required to make findings of fact to support its decision that the expenses are reasonable and necessary or that the parties have the ability to pay.
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Emergency Directives Again Renewed; Legislation to Permanently Authorize Remote Hearings Passes Senate
Chief Justice Paul Newby issued an order on Friday, effective today, extending emergency directives currently in place for an additional thirty days to in light of the ongoing COVID-19 pandemic.
The preamble. Chief Justice Newby restated that his ongoing evaluation of the pandemic might result in the expiration or modification of emergency directives, the issuance of new directives, or both. His current plan is to extend the emergency directives that are currently in place until the public health threat posed by the COVID-19 pandemic has subsided. The Chief Justice again reiterated his commitment to the state constitutional requirement that courts be open and that justice be administered without favor, denial, or delay.
Continue ReadingTo Be or Not to Be: How to Know When a Parent Attorney in a TPR Is Provisional Counsel and What That Means for Withdrawing
Consider the common scenario in which a proceeding under Article 11 of G.S. Chapter 7B is filed to terminate a parent’s rights to their child. How and when an attorney is appointed for the respondent parent in a termination of parental rights proceeding (TPR), whether the attorney is provisional or confirmed, and how the attorney may withdraw, depends on a few factors. Ongoing confusion on these points has led to several appeals in recent years, including a new ruling by our Supreme Court. See In re K.M.W., 376 N.C. 195 (2020). This post reviews the governing principles under North Carolina case law and statutes. Continue Reading
Today is GiveUNC Day – A Message from the School’s Dean
Today is the annual GiveUNC day. This year is also the School’s 90th Anniversary! Although the faces have changed over time and the name of our School (from Institute of Government to School of Government) has as well, we have been here – working to support you in your work. If you value the work of the School of Government, which includes our advising, teaching, and publications (that range from books to our many blogs like this one), please consider making a donation today. We would really appreciate your support.
Continue ReadingNC Court of Appeals rules application of grandparent visitation statutes unconstitutional
In an opinion issued on March 16, 2021, the North Carolina Court of Appeals held that a trial court’s award of visitation to paternal grandparents pursuant to North Carolina’s grandparent visitation statutes violated mother’s constitutional right to control with whom her children associate.
Mother and father settled custody by a consent custody order when they divorced. When father became ill a few years later, he began living with his parents and he filed a motion to modify custody. His parents also filed a motion to intervene and filed a claim for visitation pursuant to the grandparent visitation statutes, GS 50-13.2(b1) and 50-13.5(j). The trial court granted the grandparents’ motion to intervene, but father died before the court heard his motion to modify or grandparents’ request for visitation. Following his death, the trial court entered a permanent order granting mother primary physical and legal custody and awarding grandparents extensive visitation rights. Mother appealed.
Continue ReadingEmergency Directives Renewed and Legislation Proposed to Permanently Authorize Remote Proceedings
Chief Justice Paul Newby issued an order on Friday, effective today, extending emergency directives currently in place for an additional thirty days to in light of the ongoing COVID-19 pandemic. Tomorrow marks a full year of altered court operations, as the first set of COVID-19 emergency directives became effective Monday, March 16, 2020.
The preamble. Chief Justice Newby stated that his ongoing evaluation of the pandemic might result in the expiration or modification of emergency directives, the issuance of new directives, or both. His current plan is to extend the emergency directives that are currently in place until the public health threat posed by the COVID-19 pandemic has subsided. The Chief Justice reiterated his commitment to the state constitutional requirement that courts be open and that justice be administered without favor, denial, or delay.
Continue ReadingWhat the N.C. Supreme Court’s Ruling in In re S.M. may mean for Court Reports In Abuse, Neglect, and Dependency Cases
What happens if a court report is distributed to the parties and the court in an abuse, neglect, and dependency case, but the report is never formally offered or admitted into evidence? What if, despite never being admitted into evidence, the court relies on the report in its order? Can a party appeal due to the report never having been admitted? Is there anything a party must do to preserve this issue for appeal? This post will explore the answers to these questions in light of a recent N.C. Supreme Court decision in In re S.M., 375 N.C. 673 (2020).
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