The following post was written by Daniel Spiegel, a North Carolina Assistant Appellate Defender. It addresses the legality of a purge condition frequently imposed in civil contempt orders entered in child support enforcement proceedings across North Carolina.
This is a very important topic. Please share your thoughts and reactions.
NOTE: Since this post was published, S.L. 2018-86 was enacted effective for all initial disposition orders that are effective on or after June 25, 2018. G.S. 7B-901(c) has been amended to add the word “determines” and supersedes the holding of In re G.T., ___ N.C. App. ___, 791 S.E.2d 274 (2016), aff’d per curiam, 370 N.C. 387 (2017). 2018 legislative summaries impacting child welfare are discussed here.
Abuse, neglect, or dependency court proceedings have several different stages, one of which is the dispositional stage. The dispositional stage, which occurs only after a child has been adjudicated abused, neglected, or dependent, has several different types of hearings: initial, review, and permanency planning. During the various dispositional hearings, a court may address reunification efforts, which involve the diligent use of preventive or reunification services by a DSS when a child’s remaining in or returning to the home of a parent is consistent with achieving a safe permanent home for the child within a reasonable period of time. See G.S. 7B-101(18). How a trial court may address reunification efforts, including whether to relieve DSS from making those efforts, differs depending on the type of dispositional hearing. That is what the reunification efforts shuffle is all about. Continue Reading
I recently taught in a course for clerks on proceedings involving minors. One of the sessions related to proceedings to establish facts of birth set forth in G.S. 130A-106 and G.S. 130A-107. Both proceedings are discussed in more detail in Chapter 141 of the NC Clerk of Superior Court Procedures Manual. The session was included on the course agenda in part to highlight the areas where clerks have jurisdiction to enter judgments and orders related to facts of birth and where clerks do not. The two proceedings set forth in G.S. 130A before the clerk provide a mechanism for a person born in NC, whether an adult or a minor, who does not have a recorded birth certificate (G.S. 130A-106) or has unknown parentage and unknown place and date of birth (i.e. the person was abandoned at birth) (G.S. 130A-107) to obtain a judgment from the clerk establishing facts of birth. If the clerk enters a judgment, the clerk then (i) certifies the judgment to the State Registrar, a person appointed by the Secretary of NC Department of Health and Human Services to run NC Vital Records, and (ii) sends a copy to the local register of deeds.
These proceedings are different from a proceeding where a person has a birth certificate and wants to change information on the existing birth certificate. Essentially, the person is seeking to obtain an amended birth certificate because information on the birth certificate is incorrect or new information is known such as the person’s parentage. People often end up in the clerk’s office seeking an order to amend a birth certificate because they have been told by Vital Records in Raleigh or a local register of deeds that a court order is needed for the State Registrar to amend the birth certificate. Continue Reading
Small claims magistrates know that the small claims statutes are filled with rules about time limits. For example, small claims cases must be calendared for trial within 30 days of the complaint being filed, but summary ejectment actions must be calendared within seven (excluding weekends and holidays). A defendant must be served no later than five days before trial in all small claims actions other than summary ejectment, which requires only a two-day notice. The list goes on. Magistrates often ask about how to calculate these various time periods and the purpose of this post is to provide information about that often confusing task.
Friday night I had the privilege of joining a dinner to honor four retiring (or recently retired) superior court judges who have devoted many years of extraordinary service to the Pattern Jury Instructions Committee. The North Carolina Pattern Jury Instructions—those enormous volumes providing instructions on all manner of criminal, civil, and motor vehicle issues—are continuously updated through the hard work of a committee of ten trial judges. Every month these judges pore over the details of new legislation and appellate opinions, and they sacrifice many weekends each year traveling to the School of Government to craft instructions that best reflect current law. The time commitment is, as they say, “no joke.”
Continue ReadingThe Office of General Counsel of the North Carolina Administrative Office of the Courts (NCAOC) provides advice and counsel to judicial officials and other NC Judicial Branch employees. They do not provide legal advice to the public or to litigants on either side of a court case. In addition to providing legal counsel, the Office of General Counsel assists Judicial Branch committees, task forces and work groups with the development and management of procedures, programs, and strategies that support the judicial community. They also review, monitor, and summarize legislative bills.
Continue ReadingI am so happy to announce the availability of the 2017 Manual — Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina.
What’s In It?
This Manual provides easily accessible information about the laws, procedures, and concepts related to abuse, neglect, dependency, and termination of parental rights proceedings in North Carolina. The primary intended audience consists of district court judges, social services attorneys, parents’ attorneys, and guardian ad litem attorney advocates who work in this area of the law.
This 2017 edition is a significant revision of the previous edition (2015) and contains hundreds of pages of new content. It includes changes made to the Juvenile Code by the North Carolina General Assembly in the 2015, 2016, and 2017 sessions as well as appellate decisions published through October 1, 2017. The new content discusses a variety of topics including mandatory concurrent permanency planning, cessation of reasonable efforts and the elimination of reunification as a permanent plan, medical decision-making for a child placed in DSS custody, the reasonable and prudent parent standard, and Foster Care 18−21.
There are nine new checklists that supplement the chapter content and incorporate the legislative changes that apply to the various hearings in abuse, neglect, dependency, and related termination of parental rights proceedings. Before you bypass the chapters to get to the checklists, explore the Manual to see what is in there. Continue Reading
In an opinion issued yesterday, the NC Court of Appeals reaffirmed that while military disability pay cannot be distributed by a court in equitable distribution, it is income that can be considered when the trial court is looking for a source of payment for a distributive award. Lesh v. Lesh, NC App (Jan. 16, 2018). In reaching this decision, the court rejected the argument that this rule was changed by the recent decision by the US Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017), wherein the Court reiterated that federal law prohibits the distribution of military disability in equitable distribution.
Lesh and Howell present a good opportunity to review the law regarding military disability pay in domestic relations cases.
A trustee in a power of sale foreclosure has a fiduciary duty to both the debtor and the creditor. In re Foreclosure of Vogler Realty, Inc., 365 N.C. 389, 397 (2012). The trustee must be impartial in the performance of his or her duties as a disinterested third party and may not give an unfair advantage to one party to the detriment of the other. Id. See also In re Foreclosure by Goddard & Peterson, PLLC, 789 S.E.2d 835, 841 (2016); In re Foreclosure of Real Property for $143,600.00, 156 N.C. App. 477, 483 (2003). This duty is recognized in G.S. Chapter 45, which requires that the notice of hearing include a statement that the trustee is a neutral party and, while holding that position, may not advocate for the creditor or the debtor in the foreclosure proceeding. G.S. 45-21.16(c)(7)(b).
A trustee may be held liable for breach of fiduciary duty through a civil action brought in district or superior court. See Goddard, 789 S.E.2d at 841. If the trustee is an attorney or represented by an attorney, then the attorney also may be subject to sanctions by the N.C. State Bar for violating the N.C. Rules of Professional Conduct. This includes Rule 1.7(a) which prohibits the common representation of multiple clients if the representation involves a concurrent conflict of interest. A number of ethics opinions drafted by the Ethics Committee of the State Bar provide guidance to an attorney serving as or representing a trustee in a power of sale foreclosure. See CPR 94; CPR 166; CPR 201; CPR 220; CPR 297; CPR 305; RPC 3; RPC 64; RPC 82; RPC 90; 2004 FEO 3; 2008 FEO 11; 2011 FEO 5; 2013 FEO 5; and 2014 FEO 2.
A new law, Session Law 2017-206, went into effect on August 30, 2017 codifies a number of these opinions. The law contains a modification and addition to G.S. Chapter 45-10 and directly applies to those situations in foreclosure proceedings where an attorney is serving as the trustee. This post will give some preliminary thoughts on the new law as well as briefly discuss some of the related ethics opinions. For a more detailed review and application to a particular case in your practice, I would recommend reviewing the full ethics opinions cited herein.
In a previous post I talked about the law related to who can appear on behalf of a party in a small claims case. To briefly reiterate, small claims law makes two exceptions to the general rule requiring parties to be represented by an attorney if they do not choose to represent themselves. One exception allows corporations to appear in small claims court through an agent. See Duke Power Co. v. Daniels, 86 NC App 469 (1987). The other exception, applicable only in summary ejectment actions, allows agents with actual knowledge of the relevant facts to sign the summary ejectment complaint and (presumably) represent the plaintiff/owner in the small claims action. See GS 7A-216 and 7A-223. Both exceptions are well-established and reasonably straightforward, subject to a few somewhat uncertain points I addressed in my previous post.