Recent blog posts - 53 of 70

A few election seasons ago, a campaign sign advocating “Denning for Judge” was posted in our neighborhood. My son noticed it on the way home from school and said, “Mom:  Is Dad running for judge?”  “No, he isn’t,” I said.  Then, in a moment of pique, I said, “Actually, your dad isn’t qualified to be a judge. But I am.” Since I’ve obviously done such a great job teaching civics (and equal rights) to my children, I thought I’d share a bit with you about the selection, qualifications, and work of a North Carolina district court judge—a group of judicial officials with whom I frequently work.

READ POST "So You Want to be a District Court Judge (October 14, 2016)"

Issues of governmental immunity and public official immunity arise relatively often in North Carolina appellate opinions.  Within this important area of the law, however, there remain challenging questions.  Among them […]

Magistrates have limited authority to file juvenile petitions and enter custody orders related to delinquent and undisciplined juveniles. Specifically, a magistrate may “draw and verify the petition and accept it for filing,” in “emergency situations” when the clerk’s office is closed and “a petition is required in order to obtain a secure or nonsecure custody order.” G.S. 7B-1804. Recently, I was invited to discuss this statutory provision with magistrates at their annual fall conference. I had assumed that most magistrates rarely, if ever, file juvenile delinquency or undisciplined petitions and expected to finish the presentation early with few questions. To my surprise, I discovered that magistrates in some counties are routinely being asked to file after hours juvenile petitions and enter secure custody orders, and they had lots of questions. Since I ran out of time trying to answer them all, I decided to write this blog post.

A few weeks ago, I posted about the case of Zetino-Cruz v. Benitz-Zetino, NC App (August 16, 2016), in which the court of appeals held that the trial court erred in transferring venue sua sponte in a custody case. The opinion also mentions that, in addition to her request for custody, grandmother in that case also requested that the trial court make findings of fact and conclusions of law that are prerequisites for the children’s application to US Citizenship and Immigration Services (USCIS) for Special Immigrant Juvenile Status. The court of appeals resolved the case on the venue issue alone and did not address the request for the “extra” findings of fact or conclusions of law by grandmother.

This same request is being made in custody cases throughout the state with increasing frequency. So what is Special Immigrant Juvenile Status and what does it have to do with Chapter 50 custody cases?

**UPDATE: Effective July 21, 2017, Session Law 2017-158 expands the clerk’s civil contempt authority. The clerk now has the authority to exercise civil contempt in any instance when the clerk has original subject matter jurisdiction and issued the order that is the basis for the civil contempt in addition to any instance where a statute expressly provides for the clerk’s civil contempt authority.  See S.L. 2017-158, Sec. 11.  

Earlier this month, I had the pleasure of attending the elected clerk of superior court summer educational conference in Nags Head, NC.  The elected clerks gather annually this time of year to install new conference officers, attend educational sessions, and generally catch up on matters concerning the court system throughout the State.  I was invited by the clerk’s program committee to teach a session on civil contempt.  As part of my session, we identified the statutes that authorize the clerk to use civil contempt.  As noted in my previous post on the clerk’s contempt authority, the clerk only has the authority to use civil contempt where a statute expressly provides for it.  G.S. 5A-23(b).  Below is a list of statutes that authorize the clerk to use civil contempt.

READ POST "Drilling Down on the Clerk’s Civil Contempt Authority (September 28, 2016)"

My middle child is named Charles. The other day I referred to him as Charles in Charge.  He asked me why teachers and other adults always called him that. Ah, me. It seems my cultural references are dated.

Regardless of whether you are old enough to have had a Scott Baio poster in your room, if your work involves the courts, it is a good idea to know who is in charge of district court in your district.

*Since this post was originally published, NC DHHS Division of Social Services has enacted a policy to address the issue of educational stability for children in foster care, which you can access here (see section XIII).

It’s September, which means that children have gone back to school. When the school year starts, most children know which school they are attending. But, a child who has been removed from his home and placed in foster care may not know which school he will be going to. Is it the old school? Is it a new school where the placement is located?  If a child experiences multiple placements, does the child change schools each time the placement is in a different school district? Changing schools impacts children. That impact may be even more significant when a child is also experiencing a change in both her home environment and caretaker. As of December 12, 2016, a new federal education law goes into effect that prioritizes educational stability for children in foster care. But educational stability for a child in foster care is something that can be addressed now.

My post last week discussed the decision in Mannise v. Harrell that told us a Chapter 50B proceeding is an in personam proceeding that requires all three prongs of personal jurisdiction. That case also reminded us that a plaintiff has the burden of producing evidence, “direct or indirect,” to establish prima facie that personal jurisdiction exists when a defendant properly objects to personal jurisdiction. As illustrated in Mannise, many plaintiffs in 50B proceedings are not prepared to meet this burden.

READ POST "Domestic Violence: more on Mannise and personal jurisdiction (September 16, 2016)"

This post is the second in a series focused on In re Gault, the U.S. Supreme Court case which mandated that the core due process rights applicable to adults in criminal proceedings must also be afforded to juveniles who are alleged to be delinquent. Perhaps the most significant of these rights is the right to counsel.

The Supreme Court strongly condemned the denial of counsel to children in a proceeding which carries “the awesome prospect of incarceration” until the age of majority. 387 U.S. 1, 36. In such proceedings, a juvenile needs legal representation “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. Thus, in delinquency hearings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed,” the child and his or her parents must be notified of the child’s right to counsel, or if they cannot afford counsel, that counsel will be appointed. Id. The NC Juvenile Code codified and expanded the right to counsel in G.S. 7B-2000 by requiring the appointment of counsel for all juveniles who are alleged to be delinquent without the need to show indigency. Despite this progress, advocates still question whether the right to counsel for juveniles extends far enough.

While I always have believed a Chapter 50B proceeding requires all three prongs of personal jurisdiction as do most other civil actions, a few appellate courts in other states have held that some DVPOs can be entered without concern for long-arm statutory authorization or the minimum contacts required by Due Process. The North Carolina Court of Appeals finally had the opportunity to address the issue for the first time this week. The court held that because of the significant impact a DVPO has on a defendant, entry of any final DVPO without all three aspects of personal jurisdiction violates “Due Process and offend[s] traditional notions of fair play and substantial justice.”