On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • From a Parent Wrongly Accused of Molesting Her Daughter to Becoming an Attorney, Lessons Learned

    This entry was contributed by Austine Long on July 1, 2016 at 5:52 am and is filed under Child Welfare Law.

    In May 2008 a kindergarten teacher in a small town in Georgia was accused of sexually molesting three children. As a result, she was criminally charged, and she lost custody of her son and daughter. For two years, she was not allowed any contact with her daughter, one of the alleged victims.

    Tonya Craft, the accused teacher, shared her story during a session for investigators at the May 2016 spring public defender and investigator conference. Her presentation focused on the importance of client-centered investigation and representation. As I listened to her story about her criminal case, I heard valuable lessons that I think are relevant for attorneys representing parents in abuse, neglect, and dependency proceedings. Continue Reading

  • Administrative Inspection Warrants in Adult Protective Services Cases

    This entry was contributed by Meredith Smith on June 29, 2016 at 2:21 pm and is filed under Guardianship.

    The county department of social services (DSS) receives a report that a 65-year old woman, Mary, was injured by a family member who repeatedly hit her during a dispute that took place at Mary’s home.   Mary lives with her adult daughter, Patricia, and son-in-law, Frank.  The report includes a statement that Mary has been recently diagnosed with dementia and has not left the house in more than a month.  After finding the necessary allegations to screen the report in as an adult protective services (APS) report, the case is assigned to an APS caseworker who commences an evaluation to investigate the report further and determine whether Mary is a disabled adult subject to abuse, neglect, or exploitation and in need of protective services.  See G.S. 108A-103.

    When the caseworker goes to visit Mary as part of the evaluation, Frank refuses to allow her in the home.  The caseworker returns multiple times and each time is denied entry and access to Mary.  The caseworker determines that it is not possible to complete the evaluation without meeting with Mary.  Is there anything that she can do to gain access to the home and thus to Mary? Continue Reading

  • “Live Loan” Checks in Small Claims Court

    This entry was contributed by Dona Lewandowski on June 27, 2016 at 9:13 am and is filed under Small Claims Law.

    Magistrates in some counties are reporting increasing numbers of actions brought by finance companies to collect debts arising from “live loan” checks.  Many of us have seen these in our mailbox: documents that look like checks, made out to us personally, accompanied by instructions for quickly and easily converting the document to cash. When the recipient cashes the check, a contract for loan is created. This post will take a brief look at two North Carolina statutes that govern such loans: GS 75-20, which mandates specific disclosures on the check as well as the attached loan agreement, and GS Ch. 53, Art. 15, the Consumer Finance Act (CFA). Continue Reading

  • Teaching Judges about the School to Prison Pipeline

    This entry was contributed by LaToya Powell on June 22, 2016 at 10:00 am and is filed under Juvenile Justice.

    Every June after celebrating Father’s Day, district court judges throughout the state head to Wrightsville Beach for their annual summer conference. Normally, I get to tag along to give them a legal update on recent juvenile delinquency cases and legislation enacted since their fall conference. However, with less than a handful of published delinquency cases decided since the fall and no new legislation, I thought I’d miss this one. To my surprise, they wanted to hear about a different juvenile law topic – The School to Prison Pipeline (or STPP) – a somewhat controversial topic to discuss with judges because it’s more about policy than law. Here’s what I told them in the most neutral, non-advocacy way possible. Continue Reading

  • New Book! Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases

    This entry was contributed by Sara DePasquale on June 17, 2016 at 5:00 am and is filed under Child Welfare Law.

    This Sunday is Father’s Day, a day that celebrates fathers. It’s the perfect time to announce my new book, Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases. The book recognizes the role of fathers in abuse, neglect, or dependency cases.  Put simply, they have a role. Fathers are necessary parties to the court proceeding. See G.S. 7B-401.1(b). Fathers impact a child’s placement, visitation, and permanent plan.

    Unfortunately, every child does not have a father who has been identified by a marital presumption, acknowledgment, or judicial determination of paternity. Even when a father has been identified, his paternity has not necessarily been established, which allows for it to be challenged. The uncertainty in knowing who a child’s father may or may not be has resulted in cases where no father is named or the wrong man is named as a respondent father in the court action.  Continue Reading

  • Trial Court Jurisdiction Following Appeal of an Interlocutory Order

    This entry was contributed by Cheryl Howell on June 15, 2016 at 5:00 am and is filed under Family Law.

    My last blog post discussed the loss of trial court jurisdiction following an appeal. But the court of appeals has held that only appropriate appeals remove jurisdiction from the trial court. If a party appeals an order that is not immediately appealable, the trial court is not divested of jurisdiction and can proceed with the merits of the case, even if the merits involve the issues on appeal. See T&T Development Co., Inc. v. Southern National Bank, 125 N.C. App. 600 (1997)(appeal of decision on a motion in limine did not deprive court of jurisdiction); Harris v. Harris, 58 N.C. App. 175, rev’d on other grounds, 307 N.C. 684 (1983)(appeal of an interlocutory order in a separation agreement case did not deprive court of jurisdiction).

    Generally speaking, a party has the right to appeal only a final judgment. However, there are times that an interlocutory order is appropriate. So what should the court do when a party appeals an order that clearly is not a final judgment, such as a temporary custody order or a PSS order or an interim distribution in an ED case? When is the interlocutory appeal appropriate?

    Continue Reading

  • A Parent’s Right to Inherit Intestate from a Child

    This entry was contributed by Meredith Smith on June 12, 2016 at 4:01 pm and is filed under Estates.

    A. The Statute

    When a person dies without a will, the person dies intestate and the person’s property is distributed in accordance with the Intestate Succession Act (the “Act”) found in Chapter 29 of the North Carolina General Statutes.  The Act states that if a person dies intestate without a spouse or lineal descendants (meaning children, grandchildren, etc.), the person’s parents are entitled to take equal shares of the person’s estate if both parents are alive.  G.S. 29-2(4); G.S. 29-15(3).  If only one parent is alive, then that surviving parent takes the entirety of the intestate estate. G.S. 29-15(3).

    The parental right to inherit via intestate succession from a child is not an unqualified right. Under G.S. 31A-2, a parent who willfully abandons the care and maintenance of his or her child shall lose all rights to intestate succession in any part of the child’s estate. This bar includes any recovery from a wrongful death action because, pursuant to G.S. 28A-18-2(a), wrongful death proceeds are disposed of as provided in the Act, even though such assets pass outside of the estate.

    Although a parent may have willfully abandoned a child, the parent may still inherit from a child if the parent is able to show an exception to the bar applies.  The two exceptions listed in the statute are if the abandoning parent:

    1. Resumed care and maintenance at least one year prior to the death of the child and continued the same until the child’s death; or
    2. Was deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child. G.S. 31A-2(1) and (2).

    Continue Reading

  • The Harshest of Remedies: Dismissal for Failure to Prosecute

    This entry was contributed by Ann Anderson on June 8, 2016 at 5:00 am and is filed under Civil Practice, Civil Procedure-General.

    In civil litigation, delays can seem almost inevitable. Because litigation happens in the real world and not a perfect one, the Rules of Civil Procedure allow a little flexibility.  Within limits, parties are permitted to extend the various deadlines for pleadings, discovery, responses to motions, and other requirements (as a starting point, see Rule 6(b)).  But sometimes parties can simply push the delays too far.  For various reasons some plaintiffs just won’t advance the ball, and for their opponents, the light at the end of the litigation tunnel starts to fade.  When a case languishes for too long without good reason, the court may take action, even to the point of dismissing the case or claim entirely for “failure to prosecute.”  This authority is found in Rule 41(b) of the Rules of Civil Procedure, which says:

    Continue Reading

  • Trial Court Jurisdiction Following Appeal

    This entry was contributed by Cheryl Howell on June 3, 2016 at 5:00 am and is filed under Family Law.

    In Ponder v. Ponder, NC App (May 3, 2016), the trial court conducted a lengthy hearing on plaintiff’s motion to renew a DVPO. Realizing the order needed numerous findings of fact to resolve the issues litigated but wanting to give plaintiff immediate protection, the trial court entered a renewal order with no findings of fact on AOC Form CV-314 and informed the parties that a more detailed supplemental order would replace the form order as soon as the court had time to complete it. Following entry of the form order, defendant appealed. The trial court then entered the supplemental order with extensive findings of fact only to have the court of appeals hold that both the form and the supplemental orders were void ab initio. The form order was void for a lack of findings and the supplemental order was void because it was entered after appeal was taken.

    Continue Reading

  • Children in DSS Custody Who Need Treatment in a PRTF: There’s a Disconnect

    This entry was contributed by Sara DePasquale on June 1, 2016 at 5:00 am and is filed under Child Welfare Law.

    I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:

    1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
    2. the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.

    The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other. Continue Reading

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