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The goal of this post is to identify key challenges facing Chapter 35A Guardian ad Litem (GAL) Attorneys in the COVID-19 era and to propose strategies for addressing those challenges. […]
As we all come to terms with the new reality of social distancing and a global pandemic, the potential health risks for youth and staff in secure custody settings is cause for concern. Staff in a New York City juvenile detention center have already tested positive for COVID-19. The North Carolina Department of Public Safety has suspended visitation and volunteer activities at all juvenile justice facilities. Currently legal visits for juveniles in secure custody are still allowed. These heightened concerns about secure confinement of youth raise questions about whether and how ongoing secure custody hearings can happen in our current environment and what alternatives exist to both preserve public safety and prevent use of the congregate juvenile detention setting as much as possible. This blog will discuss when hearings on continued secure custody must be held, even in light of the emergency directive; important considerations if those hearings are conducted remotely; and the range of release options available to the court.
UPDATE #3 (May 29, 2020): For more recent updates, refer to this blog post. UPDATE #2 (April 14, 2020): The Chief Justice of the North Carolina Supreme Court entered two […]
These are not usual times for North Carolina, the U.S., or the world given the coronavirus (COVID-19) pandemic. In response to this pandemic, Chief Justice Beasley issued two Emergency Directives on Friday declaring that catastrophic conditions exist requiring changes to how the N.C. courts will operate. Yesterday, a clarifying memorandum was issued providing a “Coronavirus Update for Our Courts” (AOC Memo). These directives and other information may be accessed on the N.C. Judicial Branch website, which now has a page providing COVID-19 updates, here. This page also includes administrative orders issued by chief district court judges of judicial districts and how those individual districts are operating.
How does all this affect abuse, neglect, and/or dependency (A/N/D) court cases? A/N/D cases impact a parent’s paramount constitutional rights to care, custody, and control of their child. See Troxel v. Granville, 530 U.S. 57 (2000); Price v. Howard, 346 N.C. 68 (1997); In re R.R.N., 368 N.C. 167 (2015). Additionally, the Juvenile Code explicitly recognizes parents have constitutional rights that must be protected in these proceedings. G.S. 7B-100(1), -802. Emergency Directive 1 (paragraph 2) states that proceedings that are necessary to preserve the right to due process of law should continue to be held. Although the examples listed involve criminal proceedings, those examples do not exclude A/N/D actions where parents’ and children’s due process rights are affected.
On Friday, Chief Justice Cheri Beasley entered two emergency directives to reduce the spread of infection from COVID-19. On Saturday, Governor Roy Cooper entered an executive order prohibiting mass gatherings […]
Unless you are frequently immersed in mediation practice, you may have missed a recent renaming and overhaul of seven sets of rules governing court mediation in North Carolina. The updates […]
I continue to receive questions about transferring from juvenile to criminal superior court cases involving allegations that 16-and 17-year-olds have engaged in certain criminal conduct. Recently I’ve been asked about the transfer process for offenses committed at ages 16 and 17 in cases that involve a series of charges that include Class A – G felonies, Class H and I felonies, and misdemeanors. Because the Juvenile Code prescribes differing procedures for transferring various classes of felonies and there is no transfer process for misdemeanor offenses, confusion is understandable. The key to understanding how to handle these cases is this: Once one felony is transferred, all other related charges, regardless of offense class, are automatically brought under the jurisdiction of the superior court. Why?
I am very excited to announce the availability of two new resources. Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina (2019), otherwise known as “the A/N/D […]
Today’s post describes two unrelated but important developments in the area of family law. The first section of the post discusses legislative amendments to Chapter 50B regarding Domestic Violence Protection Orders that became effective December 1, 2019. The second section of the post discusses amendments to the Child Support Guidelines adopted by the Conference of Chief District Court Judges effective March 1, 2020 to bring North Carolina into conformity with federal child support regulations.
The Indian Child Welfare Act (ICWA)* is a complex federal law that applies to abuse, neglect, or dependency (A/N/D); termination of parental rights (TPR); and adoption proceedings. One of the purposes of ICWA is to provide special protections to federally recognized Indian tribes and the tribes’ children and families. See 25 U.S.C. 1901‒1902.
Subject matter jurisdiction between tribal courts and state courts is governed by ICWA when an “Indian child” is the subject of the A/N/D, TPR, or adoption proceeding. When any of the criteria of 25 U.S.C. 1911(a) are met, the tribal court has exclusive subject matter jurisdiction. When that criteria do not exist, ICWA allows for concurrent jurisdiction between state and tribal courts. See 25 U.S.C. 1911(b), (c). The N.C. Court of Appeals (COA) recently published two opinions addressing subject matter jurisdiction under ICWA. In one case, the COA held that the N.C. court had jurisdiction in an adoption proceeding that involved two Indian children. In the other case, the COA remanded for further proceedings in the trial court in part to ensure the trial court had subject matter jurisdiction in the A/N/D action when it was uncertain whether the child was an “Indian child.”
A takeaway from these cases is that the N.C. court is not automatically divested of subject matter jurisdiction when an Indian child is the subject of the proceeding. But, how does the N.C. court know if it has subject matter jurisdiction?