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Every other year the School of Government and Office of Indigent Defense Services hold a multi-day skills training for juvenile defenders in North Carolina. The first day of this year’s intensive training was held at the Guilford County Juvenile Detention Center in Greensboro, NC. The juvenile defenders first heard sessions on adolescent brain development by Dr. Ayesha Chaudhary, Forensic Psychiatrist at Duke University, and detention advocacy by Mitch Feld, Director of Children’s Defense at the Council for Children’s Rights. This set the stage for the tour of the facility and conversations with the youth.

With April recognized as Child Abuse Prevention Month, it seemed fitting to write about North Carolina’s Responsible Individuals List (RIL). If you’re thinking “I’m a responsible person; I should be on that list,” you should know what makes a person a “responsible individual” for purposes of placement on the RIL. The definition is somewhat counterintuitive; a “responsible individual” is a parent, guardian, custodian or caretaker who has abused or seriously neglected a child. G.S. 7B-101(18a). If you are identified as a “responsible individual,” your name will be added to the statewide RIL, which is maintained by the North Carolina Department of Health and Human Services. G.S. 7B-311(b).

Last September, I began a blog post with the following statement; “Beware. A child support or alimony order should never contain the word “capacity” or the words “ability to earn” unless it also contains the words ‘bad faith.’” Imputing Income: Voluntary Unemployment is Not Enough. On April 5, 2016, the court of appeals once again reminded us that this overly dramatic generalization of the law frequently proves true. Lasecki v. Lasecki is a great opinion to read for a review of the law relating to establishing and enforcing child support when parents have an unincorporated separation agreement and it is yet another statement by the court that we should never consider a parent’s capacity to earn at any stage of a child support proceeding unless we first determine that the parent is intentionally depressing income in deliberate disregard of a support obligation.

READ POST "And They Said It Again: Never Use Earning Capacity Without Bad Faith (April 22, 2016)"

Unless the court has specified a shorter term, a juvenile’s initial term of probation expires after one year, if not extended by the court. Extensions of probation are governed by G.S. 7B-2510(c), which was amended by HB 879 effective December 1, 2015. The statute now provides that “[p]rior to expiration of an order of probation, the court may extend it for an additional period of one year after notice and a hearing, if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the juvenile.” Since December, I’ve received numerous questions about the new notice requirement, which apparently is being interpreted in many different ways.  To help clarify this question and other issues related to extensions of probation, here’s a brief summary of FAQ’s about the procedure for extending a juvenile’s probation.

Unlike other civil judgments, custody and support orders can be modified when there has been a substantial change in circumstances since the order was entered. This rule is codified in North Carolina at GS 50-13.7 and every state in the country has a similar statute.

While this authority is broad and straight forward, there are other statutory provisions that place significant limits on a court’s subject matter jurisdiction to modify a custody or support order – whether the order originally was entered in NC or in some other state or country. These statutory provisions were enacted for the purpose of discouraging parents from running from state to state in the hope of obtaining a more favorable court order.

READ POST "Child Custody and Support: Jurisdiction to Modify (April 15, 2016)"

My topic for today’s post is drawn from an email I received last week from a magistrate asking several great questions. Here’s what she wrote: “I was just thinking about […]

***UPDATE TO POST MAY 2, 2016: On April 26, 2016, the NC Supreme Court granted a temporary stay of the Court of Appeals ruling in the case discussed in this post. See SC docket #152P16-1.

***UPDATE TO POST OCTOBER 2, 2017: On September 29, 2017, the NC Supreme Court reversed the opinion of the Court of Appeals discussed in this post. See Catawba County ex rel. Rackley v. Loggins.

On Tuesday this week, the court of appeals held that a consent order modifying an existing child support order was void because no motion to modify was filed before the consent modification was entered by the court. In Catawba County ex. rel. Rackley v. Loggins, (NC App, April 5, 2016), the court held that GS 50-13.7 clearly requires that a motion in the cause requesting modification be filed in order to invoke the subject matter jurisdiction of the court to enter any further orders in the support case. Without the motion, the court has no subject matter jurisdiction to act.

Unfortunately, it is not uncommon in North Carolina for orders to be entered modifying existing custody and support orders without anyone actually filing a motion to modify. This practice is especially common when all parties in the case agree to the modification. The court of appeals now has made it clear that this practice of ignoring required procedure results in invalid, unenforceable orders.

READ POST "Hope Someone Remembered to File the Motion to Modify…….. (April 8, 2016)"

Even if you don’t know much about North Carolina’s Rules of Appellate Procedure, you probably know this:  There’s a 30-day time frame in which to appeal a civil judgment, and this deadline is jurisdictional—an untimely notice of appeal “mandates dismissal” of the appeal.  E.g., Bailey v. State, 353 N.C. 142, 156 (2000).  In other words, Thou Shalt Not Miss Thy Appeal Deadline.  Naturally, then, a would-be appellant needs to know when the 30-day appeal period begins and ends.

The general time requirement is set out in Rule 3(c)(1), which makes clear that the notice of appeal must be filed and served within 30 days after entry of judgment as long as “the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure.”  (Served pursuant to Rule 5 within three days of entry of judgment.)  Under Rule 3(c)(2), however, when the party is not served within that three day period, the notice of appeal must be filed and served within 30 days “after service upon the party of a copy of the judgment.”

By the plain language of Rule 3(c)(2), a party not served within three days would be led to think that its 30-day appeal clock starts when service is made.  Not so fast.  In a series of fairly recent opinions, the Court of Appeals has held that, if the appellant had some sort of actual notice of the judgment during those three days after its entry, Rule 3(c)(2) does not apply.  If there was actual notice, the 30 days instead began to run upon entry of judgment.  Here, in brief, are the opinions:

Prospective child support is the support ordered to be paid for the support of the child in the future. However, the court of appeals has held that all orders for prospective support must be effective as of the date the complaint seeking support was filed unless the trial court makes specific finding of fact to support ‘deviating’ from the general rule. Ex. rel. Miller v. Hinton, 147 NC App 700 (2001). This means that prospective support generally includes amounts ordered for a period of time before the support order is entered, but only that time period between the date of the filing of the complaint and the time of the entry of the child support order. And of course, GS 50-13.4 provides that the amount of prospective support generally is determined by application of the child support guidelines.

But what about orders for support for a period of time before a complaint or motion for support is filed?

READ POST "Retroactive Child Support: What is it and how is the amount determined? (April 1, 2016)"

** UPDATE: On October 4, 2016, the N.C. Court of Appeals published a decision, In re Dippel, in which the court applied G.S. 35A-1115 and G.S. 1-301.2 to hold that an aggrieved party has the right to appeal from the clerk’s order dismissing an incompetency proceeding. In that case, the court determined that the petitioner was an aggrieved party and could appeal from the clerk’s order. However, the court did not provide any analysis as to how the petitioner is aggrieved by the clerk’s order dismissing the incompetency proceeding pertaining to the respondent’s competency. The opinion therefore provides limited guidance going forward as to whether a person that is entitled to notice and is not the petitioner has a right to appeal the clerk’s order dismissing the incompetency proceeding as an aggrieved party. **

Bob and Mary have been married for 60 years.  They live at home together but recently Mary’s health has started to decline significantly.  Due to a concern over Mary’s ability to care for herself, a friend of Mary’s makes a report to the county department of social services (DSS).   After an investigation, DSS decides to file a petition to adjudicate Mary incompetent and an application to have a guardian appointed on her behalf.   DSS sends notice of the proceeding to both Bob and Jane, their daughter, as Mary’s next of kin.   After a hearing, the clerk of superior court finds that Mary is incompetent and appoints Jane as her general guardian.

Bob comes to you as his attorney and states that he wants to appeal the clerk’s decision.  Does he have standing to appeal?