Can a district court judge impose a consecutive term of commitment upon a delinquent juvenile who is already committed to a youth development center (YDC)? Until yesterday, when I had to research this question for a client, I assumed that consecutive terms of confinement applied only to adult criminal sentences under G.S. 15A-1354 but not to juvenile dispositions. Juveniles who are long term committed to juvenile facilities generally are placed there indefinitely and must work towards release by completing appropriate treatment and services designed to correct their behavior. Typically, there is no predetermined end date to the commitment (like a criminal sentence) which is why I assumed that juveniles could not receive consecutive terms. I was surprised to learn that my assumption was wrong when I found what appears to be the only NC appellate decision on the issue. See Matter of Thompson, 74 N.C. App. 329, 330 (1985). Although Thompson holds that a court may impose a consecutive commitment term, there are a couple reasons why courts may choose not to do so in a delinquency case. Continue Reading
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Parenting Coordinators in Custody Cases
***NOTE: After the publication of this blog, the statute dealing with parenting coordinators was extensively amended. See S.L. 2019-172, effective October 1, 2019.
Unfortunately, the entry of a custody order does not always stop conflict between parents. Anyone working in family law knows that there are cases where, no matter how much effort and skill goes into creating the parenting plan, the parties will continue to come back to court because of the inability of one parent or both to stop fighting.
Recognizing that on-going litigation is bad for families, the General Assembly in 2005 enacted Article 5 of Chapter 50, GS 50-90 through 50-100, to authorize the appointment of a Parenting Coordinator (“PC”) in custody cases determined to be ‘high-conflict’. The hope is that the PC can help parents reduce their need to return to court.
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Paralegal Fees as Part of Attorney Fee Award?
In honor of this short court week, here’s a brief post answering a question I’ve been asked a few times: When a statute authorizes a court to award reasonable attorney fees as costs, can the fee award also include reasonable paralegal fees? (Note that paralegal fees are not separately included in the “complete and exclusive” list of allowable expenses in 7A-305(d).) Some trial judges and clerks of court routinely include paralegal fees in attorney fee awards and others do not. But have North Carolina’s appellate courts addressed the specific question one way or another? Yes, and the short answer is that trial courts do indeed have this discretion. In Lea Co. v. North Carolina Board of Transportation, the Supreme Court reviewed an attorney fee award in the context of a condemnation action. The court stated pointedly that,
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From a Parent Wrongly Accused of Molesting Her Daughter to Becoming an Attorney, Lessons Learned
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
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Administrative Inspection Warrants in Adult Protective Services Cases
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
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“Live Loan” Checks in Small Claims Court
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
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Teaching Judges about the School to Prison Pipeline
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
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New Book! Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases
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
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Trial Court Jurisdiction Following Appeal of an Interlocutory Order
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?
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A Parent’s Right to Inherit Intestate from a Child
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:
- 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
- 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).