On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • A Minor’s Consent to Adoption: Where and in What Proceeding Is It Waived?

    This entry was contributed by Sara DePasquale on March 5, 2021 at 4:55 pm and is filed under Adoptions.

    North Carolina adoption laws are codified in G.S. Chapter 48. I find it to be one of the more difficult Chapters to navigate because it consists of interrelated Articles and Parts. As you get familiar with the Chapter, the procedures and requirements become less challenging to piece together. It is imperative to know these procedures because “the law governing adoptions in North Carolina is wholly statutory.” Boseman v. Jarrell, 364 N.C. 537, 542 (2010).

    Under North Carolina adoption laws, before an adoption of an unemancipated minor may be granted, certain consents must be obtained. See G.S. 48-3-601 through -603. One required consent is from the minor adoptee if they are 12 years old or older. G.S. 48-3-601(1). However, that minor’s consent may be waived when the court issues an order based upon a finding that it is not in the minor’s best interests to require their consent. G.S. 48-3-603(b)(2).

    What court has jurisdiction to enter the order waiving the minor adoptee’s consent?

    The question is circulating due to some recent North Carolina Supreme Court opinions involving appeals of termination of parental rights (TPR) orders. The facts of the opinions indicate the district court in the TPR action waived the juvenile’s consent to the adoption. The issue of whether the district court in a TPR proceeding has subject matter jurisdiction to waive the juvenile’s consent does not appear to have been raised before or decided by the Supreme Court. Instead, the minor’s waiver of consent is discussed by the Supreme Court in its review of the facts when analyzing a challenge to the district court’s determination that the TPR is in the juvenile’s best interests. The factual summaries in the Supreme Court TPR opinions made me sit up in my chair, take notice, and ask the questions in this post. Continue Reading

  • Legal Questions Arising from Inclusion of Young Children in Delinquency Jurisdiction

    This entry was contributed by Jacquelyn Greene on February 23, 2021 at 12:29 pm and is filed under Juvenile Justice.

    Children in North Carolina can be tried as respondents in delinquency proceedings for their actions beginning at age 6. The inclusion of young children in delinquency jurisdiction, some of whom may be young enough to remain staunch believers in Santa and to eagerly await a visit from the tooth fairy or the Easter bunny, raises significant legal questions in light of their developmental maturity. Those questions include:

    • whether the infancy defense should play a role in delinquency proceedings?
    • whether the capacity standard used in delinquency proceedings should explicitly account for developmental immaturity?
    • at what point do children develop the skills necessary to function as a competent respondent?

    A new Juvenile Law Bulletin, Including Young Children in Delinquency Jurisdiction: Issues of Infancy and Capacity, is now available and discusses these issues in-depth. This blog provides some highlights of the bulletin. Continue Reading

  • Prospective Child Support: What is it and how is the amount determined?

    This entry was contributed by Cheryl Howell on February 10, 2021 at 8:30 am and is filed under Family Law.

    In the post “Retroactive Support: What is it and how is the amount determined”, I wrote that the law defines retroactive support as support due for the time before a complaint or motion seeking support is filed, Briggs v. Greer, 136 NC App 294 (2000), and that the amount of retroactive support owed by an obligor can be determined based either on the Child Support Guidelines or on the parent’s share of actual expense incurred on behalf of the child during a period of time in the past. NC Child Support Guidelines, March 1, 2020, p. 2.

    Continue Reading

  • Juvenile Justice System Impacts in the First Year of Raise the Age

    This entry was contributed by Jacquelyn Greene on January 26, 2021 at 9:46 am and is filed under Juvenile Justice.

    The Juvenile Justice Reinvestment Act (JJRA), which raised the age of juvenile court jurisdiction to include youth who commit offenses at ages 16 and 17, went into effect on December 1, 2019. What impacts have been realized in the juvenile justice system as a result? The Juvenile Jurisdiction Advisory Committee (JJAC), created by the JJRA, submitted its required interim report to the General Assembly on January 15, 2021. The report provides many details about the first year of implementation as well as JJAC recommendations for legislative amendments and ongoing budgetary needs. This blog provides a summary of some of the trends during the first year of raise the age implementation as detailed in the report. Continue Reading

  • School of Government seeks new faculty member to specialize in civil trials and contested hearings

    This entry was contributed by Cheryl Howell on January 20, 2021 at 9:05 am and is filed under Uncategorized.

    The UNC School of Government seeks to hire a tenure-track faculty member who will specialize in the procedural law that governs civil court actions and the practical aspects of conducting civil trials and contested hearings. Public officials, rather than degree-seeking students, are the principal audience for the School’s work. This position will be responsible for educating judicial officials (including judges, magistrates, and clerks of court), other court system actors, and state public officials on the law of North Carolina related to civil trials and contested hearings, including, for example, the Rules of Civil Procedure, the Rules of Evidence, contempt, recusal and judicial immunity, attorney fees, execution and other post-judgment process, and appellate procedure.

    Continue Reading

  • Court of Appeals rules that denying domestic violence protection to persons in same-sex dating relationships is unconstitutional

    This entry was contributed by Cheryl Howell on January 5, 2021 at 5:52 pm and is filed under Domestic Violence.

    **After this entry was posted, the North Carolina Supreme Court affirmed the decision of the Court of Appeals in M.E. v. T.J. and left the holding of the Court of Appeals regarding same-sex dating relationships undisturbed. M.E. v. T.J., _ N.C. _ (March 11, 2022), affirming as modified, 275 N.C. App. 528 (2020).

    In this post on August 15, 2017, DVPOs for Same-Sex Dating Relationships?, my former colleague Jeff Welty discussed the constitutionality of G.S. 50B-1(b)(6) in light of recent rulings by the United States Supreme Court addressing the rights of same-sex couples and in light of a South Carolina appellate court ruling that providing domestic violence protection to persons in heterosexual dating relationships while denying protection to persons in same-sex dating relationships is unconstitutional. Like the South Carolina statute, N.C.G.S. 50B-1(b)(6) provides that while persons of the opposite sex in a dating relationship are eligible for a DVPO, persons of the same sex in a dating relationship are not eligible for protection. On December 31, 2020, in M.E. v. T.J., the North Carolina Court of Appeals held this provision unconstitutional as applied to deny a plaintiff protection from domestic violence simply because plaintiff and defendant had been in a same-sex dating relationship rather than a heterosexual relationship.

    Continue Reading

  • Extensions and Modifications of Emergency Directives from the Chief Justice

    This entry was contributed by Meredith Smith on December 14, 2020 at 8:47 pm and is filed under Judicial Authority.

    Last night, I sat in a church parking lot, masked and socially distant, listening to live Christmas carols.  It is still hard to get my head around all the ways the pandemic is changing our day to day lives.  From smaller things like services in parking lots to larger things like the postponing of court proceedings across the state to  unimaginable things like saying a final goodbye to loved ones via FaceTime.  At the start of 2020, I am not sure anyone could have imagined this is how the year would end. But here we are.

    Continue Reading

  • Summary Ejectment in the time of COVID, Part 2: The CDC Order and EO 171

    This entry was contributed by Dona Lewandowski on December 9, 2020 at 11:40 am and is filed under Small Claims Law.

    Over the last several months, both federal and state governments have issued orders, effective until December 31, placing temporary restrictions on residential evictions. As everyone knows, many tenants have lost their jobs and thus their ability to pay the rent when it’s due. At a time when Stay Home! signs are everywhere, billboards are a common sight, the prospect of large numbers of tenants either moving in with relatives or friends or becoming homeless raises serious public health concerns. The result has been a hodgepodge of emergency measures enacted by local, state, and federal governments. The interpretation and implementation of these measures has, not surprisingly, been challenging for the court system.

    Continue Reading

  • COVID-19, Local Action, & Civil Issues: Sharing Information from Our SOG Colleagues

    This entry was contributed by Sara DePasquale on December 4, 2020 at 9:51 am and is filed under Uncategorized.

    For those who know me, I have been referring to 2020 as the lost year. We have lost so much – lives, family time, social gatherings, routines, and our general way of life. Some of these changes are permanent, like the loss of those we love who have died, and others are temporary albeit longer than many of us initially thought and planned for. As this calendar year approaches its end, the COVID-19 numbers are increasing. State and local entities continue to issue protective measures. Questions about the implementation of those measures have arisen. This week, two of my colleagues have written blog posts for the School’s Coates’ Canons blog discussing remedies, including whether civil penalties may be imposed, for violations of state or local orders. I am sharing those posts with you here.

    Continue Reading

  • Appointment of Attorneys in Juvenile Transfer Cases

    This entry was contributed by Jacquelyn Greene on November 24, 2020 at 4:52 pm and is filed under Juvenile Justice, Juvenile Law, Uncategorized.

    How does the appointment of counsel to represent juveniles with cases that are transferred to superior court for trial as adults work? This can be a confusing question to answer given that the legal authority for the appointment of counsel changes at the time of transfer, there are important immediate legal issues following transfer, and there are so many different ways in which indigent defense services are provided across North Carolina. This blog will (1) identify the law that governs appointment of counsel when cases are in juvenile court and following transfer, (2) share recently released guidance from the N.C. Office of Indigent Defense Services (IDS) regarding appointment of counsel in matters that are transferred, and (3) suggest a procedure that could be followed to ensure that the rights of juveniles regarding appeals of transfer orders and conditions of pretrial release are ensured. Continue Reading

^ Back to Top