The North Carolina Court of Appeals in In re A.K., ___ N.C. App. ____ (Aug. 6, 2024) addressed a parent’s right to be represented by a privately retained attorney of their choosing in an abuse, neglect, and dependency (A/N/D) action. See Timothy Heinle’s post discussing that issue here. The opinion also discusses issues related to the mother’s and child’s culture – their religion and language. This post explores those aspects of the opinion. Continue Reading
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Changes Coming to Delinquency Law
Session Law 2024-17 contains several changes to delinquency law and new penalties for soliciting a minor to commit an offense. I covered the changes related to juvenile jurisdiction and the transfer process in last month’s blog. This blog explains the remaining changes. They include modifications to the timelines for secure custody hearings and for a victim or a complainant to request prosecutor review of a decision not to file a petition, school notification of the filing of a felony delinquency petition, restitution as a dispositional alternative, and the crime of soliciting a minor to commit an offense. These changes will take effect beginning with offenses committed on or after December 1, 2024. Continue Reading
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A Respondent Parent’s Right to Retain Counsel: Lessons from a New Court of Appeals Decision, In re A.K.
A recent decision by the North Carolina Court of Appeals considers the right of a respondent parent in a juvenile abuse, neglect, or dependency (AND) proceeding to hire counsel of their own choosing and what standards, if any, a retained attorney must meet to be allowed to represent a parent. In re A.K., __ N.C. App. __ (August 6, 2024). The case also includes discussion of the procedures for appointing a Rule 17 guardian ad litem to a respondent parent – an issue I will explore in a later post. This post focuses on what the opinion in A.K. does – and does not – tell us about a parent’s right to hire counsel. Continue Reading
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Navigating Summary Ejectment Cases Involving Public and Subsidized Housing
Magistrates from around the state report to me that summary ejectment actions involving public housing authorities seem to be on the rise. In North Carolina, summary ejectment is the judicial process by which a landlord can seek an order of the court granting the landlord possession of a rental property. The two-step process begins with a judgment for possession rendered by a judicial official, often a magistrate in small claims court, and is completed by the issuance of a writ of possession that authorizes the sheriff to remove tenants who fail to vacate the rental property or who fail to stay the issuance of a writ of execution. When the landlord is a public housing authority or a participant in a housing voucher program, both state and federal housing laws are involved which adds to the level of complexity already present in an action for summary ejectment. In fact, these types of cases are specifically referred to as “complex” in GS 7A-222(b), the statutory provision that authorizes magistrates to reserve judgment in more complex summary ejectment actions. Added to the legal complexity are the high stakes for renters with low incomes who may be ineligible for participation in subsidized housing for years following an eviction.
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The NC Court of Appeals addresses “self-executing” modification provisions in custody orders
The North Carolina Supreme Court has stated that “[a] judgment awarding custody is based upon conditions found to exist at the time it is entered ….” Stanback v. Stanback, 266 N.C. 72, 76 (1965). See also Kellanos v. Kellanos, 251 N.C. App. 149 (2016)( a district court must consider the pros and cons of ordering primary custody with each parent, contemplating the two options as they exist [at the time of the hearing], and then choose which one is in the child’s best interest.”).
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New Law Regarding Pornography on Government Networks and Devices
North Carolina will soon have a new law, effective October 1, 2024, that prohibits local governments, state agencies, the judicial branch, and the legislative branch from allowing pornography to be viewed on their networks or devices. The law, found at Section 7 of S.L. 2024-26, establishes a deadline for government employees and officials to delete any pornography from their government devices, creates reporting requirements for unauthorized viewing or attempted viewing of pornography, and requires public agencies (including units of local government and public school units) and the judicial and legislative branches to adopt policies governing the use of their networks and devices. It also contains some important exceptions for employees and officials who might need to view pornography (as that term is defined by this new law) as part of their official duties. Continue Reading
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Change to the Law of Juvenile Jurisdiction and Juvenile Transfer to Superior Court
Session Law 2024-17 enacts changes to the law regarding the scope of original juvenile jurisdiction beginning with offenses committed on or after December 1, 2024. Law changes regarding the existing process to transfer a case from juvenile to superior court will also take effect at that time. Read on for a description of the changes. Continue Reading
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Legislative Changes in Child Welfare: The Short Session
The North Carolina General Assembly made some changes to child welfare laws during this short session. Many of these changes have taken effect and some will be effective by January 1, 2025. All the amendments are important for those of you who practice in this area to be aware of. Continue Reading
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Child Support: Would the result in Green v. Carter be different if the parties were married?
I wrote about the opinion in Green v. Carter, 900 S.E.2d 108 (N.C. App., March 19, 2024), in this post: https://civil.sog.unc.edu/an-unmarried-partner-with-joint-legal-and-physical-custody-is-not-a-parent-and-cannot-be-ordered-to-pay-child-support/ The court of appeals held that the partner of the biological mother of a child (Green) could not be ordered to pay child support, even though she and the mother of the child (Carter) decided to have the child together while they were living together, agreed to the use of artificial insemination with a sperm donor to create the child, and held themselves out as the “parents” of the child for years until their romantic relationship ended. The partner (Green) was granted joint legal and physical custody of the child after a trial court concluded that the biological mother (Carter) had waived her constitutional right to exclusive custody by holding the partner out as the child’s co-parent and by intentionally allowing the partner to develop this parent-like relationship with the child without indicating the relationship was not a permanent one. But when the trial court determined that the partner should pay child support, the court of appeals reversed, citing G.S. 50-13.4 and stating: “[b]ased on long-established North Carolina law, … [a person] cannot be required to pay child support unless she is the child’s mother or father or has agreed formally, in writing, to pay child support.”
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2024 HIPAA Final Rule: The New Attestation Requirement
This post is written by my colleague, Kirsten Leloudis, who works in the area of public health. Her contact information is below.
On June 25, 2024, changes to the HIPAA Privacy Rule aimed at supporting reproductive health care privacy went into effect. Last week, I published a blog post about these changes, including the creation of three new types of prohibited uses and disclosures of protected health information (PHI). This post addresses another major change to the law: a new attestation requirement that applies to four types of uses and disclosures when the PHI at issue is “potentially related” to reproductive health care. It’s not just covered entities and business associates that need to understand this new requirement- judicial officials, law enforcement, health oversight agencies, and medical examiners who frequently request PHI to carry out their official duties will likely encounter situations that require them to comply with the new attestation requirement, too. Continue Reading