BLOG
Episode 6, “Obtaining Permanency,” for our Beyond the Bench Season 2 podcast is available now!
This episode talks about permanent outcomes for the family and child, with a discussion of two opposite outcomes: a child’s reunification with his/her parents and the child’s adoption after a termination of parental rights. Find out what happens in our remaining court case!
The North Carolina Court of Appeals issued an opinion last week that may – or may not–have some implications for residential leases in North Carolina. At the very least, RME Management, LLC, v. Chapel H.O.M. Associates, LLC (filed 1/17/2017) makes me think I should give a longer answer when a small claims magistrate asks me a particular question about summary ejectment law. But more on that later. First, let’s take a look at RME.
UPDATE: On March 26, 2019, the NC Court of Appeals in Gray v. Federal National Mortgage Association interpreted Lucks and held while the doctrine of collateral estoppel does not apply to an order not authorizing a non-judicial foreclosure sale, it does apply to an order authorizing a sale.
On December 21, 2016, the North Carolina Supreme Court published a final set of opinions for the year. Without a doubt, one case in particular stopped me in my tracks. The case, In re Foreclosure of Lucks, will have a significant impact on G.S. Chapter 45 power of sale foreclosures going forward. ____ N.C. ____ (Dec. 21, 2016). Here’s both the general and the specific about what the court had to say.
Last month, I was listening to hosts on a radio station discuss the fires in Tennessee that caused the loss of 14 lives and damage or destruction to more than 1,700 buildings. They were shocked to learn that two teenagers are alleged to have started these fires. The hosts discussed the many stupid things they did when they were teenagers. They shared how they did not consider the consequences of their actions before engaging in such risky behaviors. One host said he once set something on fire in the woods. Although the fire didn’t cause any damage or harm, he never considered that the fire could get out of hand. Another host stated that she could not excuse the teenagers. She could understand if they were eight or nine years of age, but she believes teenagers know exactly what they are doing. At what age should a teenager be held criminally responsible for misconduct that constitutes a crime? North Carolina lawmakers are currently debating this question.
We’re back with Episode 5, “The Child’s Voice in Court: The Role of the Guardian ad Litem,” for our Beyond the Bench Season 2 podcast. In this episode, we take a break from our court cases to focus on the child. Find out how the child’s perspective is represented in court, through a guardian ad litem and the child him or herself.
*Since the post was published, S.L. 2017-161 added G.S. 7B-200(a)(5a), which provides the district court with exclusive, original jurisdiction over a G.S. 7B-910.1 review. Additionally, a technical correction was made to G.S. 7B-910.1.
The new year brings Foster Care 18-21 to North Carolina. This is a new program that offers extended foster care to children who have aged out from foster care. Foster Care 18-21 was created by S.L. 2015-241, Section 12C.9 and became effective on January 1st. The North Carolina Division of Social Services provides additional information about this new program in its Child Welfare Services Policy Manual, Section 1201, XII (“NC DSS §1201, XII”).
This will be the last On the Civil Side blog post for 2016. We will be back on January 11, 2017. That gives you plenty of time to listen to Episode 4, “The Case Plan: In and Out of Court,” for our Beyond the Bench Season 2 podcast, available now!
This episode picks up where episode 3 ended. There’s been an adjudication of child neglect and an initial disposition order entered by the court. Now the family and department are engaged in case planning. The court is monitoring the progress and ultimately deciding what the final goals for the family are through periodic review and permanency planning hearings. Find out what’s involved both in and out of court.
Just like other organizations, churches can sue and be sued. Much of the time religious doctrine is not relevant to the dispute, such as when a contractor does a shoddy job building the sanctuary, when the church’s neighbor contests a boundary, or when the church’s van gets into a collision. But sometimes disputes can hinge on, or at least involve, the organization’s beliefs, principles, creeds, or canons. Usually that happens in internal disagreements—actions among the church and its members, officers, directors, or leaders; or between an individual assembly and the larger organizing body. In such cases, the authority of secular courts to decide the outcome is sharply limited by the Free Exercise and Establishment clauses of the First Amendment to the United States Constitution.
Analyzing a church’s internal property dispute, the U.S. Supreme Court stated decades ago that
[F]irst Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.
Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).
When such conflicts arise in North Carolina civil actions, our courts must ask the following: May the court resolve the dispute using only neutral principles of law? If so, the First Amendment does not prohibit the court from exercising jurisdiction. If, instead, deciding the issue would entangle the court in ecclesiastical matters, the court must decline to intervene. See Harris v. Matthews, 361 N.C. 265, 274 (2007). “The dispositive question is whether resolution of the legal claim requires the court to determine or weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490, 494 (1998).
North Carolina’s appellate courts have not, of course, had the opportunity to subject every type of internal church dispute to this test. But there are plenty of examples of how it applies—many quite recent—and these are some of the key conclusions:
In 1978, Congress enacted the Indian Child Welfare Act (ICWA). 25 U.S.C. §§ 1901 – 1963. Through ICWA, Congress declared
it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture….
25 U.S.C. § 1902.
For the first time since its passage, ICWA now has federal regulations that states must follow. 25 CFR Part 23. One of the purposes of these new regulations is to ensure the consistent application of ICWA protections across the states. 25 CFR 23.101. The regulations become effective on December 12th and apply to all “child custody proceedings” and “emergency proceedings” starting on or after that date. 25 CFR 23.103, 23.143.
In a prior post, I discussed whether North Carolina’s Rule of Civil Procedure 59—the “new trial” rule—could be used to seek relief from final judgments not resulting from a jury or non-jury trial. That post focused on other types of final, appealable judgments, such as summary judgment orders and default judgments. I concluded that North Carolina case law is not crystal clear on the question, but that the recent case of Bodie Island Beach Club Ass’n, Inc. v. Wray, 215 N.C. App. 283 (2011), indicates that filing Rule 59 motions for relief from these types of judgments could imperil an appeal. Proper Rule 59 motions toll the appeal period for the underlying judgment pending disposition of the motion. See N.C. R. App. P. 3(c)(3). If the basis for the Rule 59 motion is not proper, the appeal period will not have been tolled.
Yesterday the Court of Appeals again addressed Rule 59’s applicability to orders other than trial judgments, but this time analyzed a pretrial, interlocutory order. In Tetra Tech Tesoro, Inc. v. JAAAT Tech. Services, LLC, a construction dispute, a subcontractor sued a contractor for unpaid work. The trial judge granted the subcontractor a preliminary injunction requiring the contractor