A foster parent provides substitute care for a child who has been separated from his or her family because of abuse, neglect or dependency. G.S. 131D-10.2(9a);10A NCAC 70B.0101. When a  parent, relative, guardian, or custodian is unable to care for a child, a foster parent is a critical part of a county department’s plan for arranging for the child’s immediate and temporary safety. Foster parents are likely to have relevant information that will assist a court in determining what is in the child’s best interests. Foster parents may also be interested in adopting a child who has been placed in their care. Does a foster parent have a right to participate in the court proceeding?

Vern and Jane are divorced and have one son, Teddy, who has severe intellectual and developmental disabilities.  When Teddy turns 17 ½ years old, Vern files a petition with the clerk of superior court of Unreal County to have Teddy adjudicated incompetent and an application to be appointed as Teddy’s guardian.  G.S. 35A-1105; G.S. 35A-1210.  After a hearing, the clerk finds clear, cogent, and convincing evidence of Teddy’s incapacity and enters an order adjudicating Teddy incompetent.  G.S.  35A-1112(d).  The clerk appoints Vern as Teddy’s guardian of the person and Jane, who also filed an application to be Teddy’s guardian, as his guardian of the estate.

I promised to follow up my last post with a discussion of that little change in S.L. 2015-153 to G.S. 7A-314, the witness fee statute. First some background: General Statute 7A-305 sets out the costs assessable in North Carolina civil actions. [Note that liability for costs in a given case is generally determined under G.S. Chapter 6.]   Subsection (d) of 7A-305 lists the expenses of a party that may be recovered as costs. Prior to 2007, there was confusion about whether the list of expenses in 7A-305(d) was exclusive, or whether additional expenses—such as expert witness fees—could also be awarded in the court’s discretion. Then, in July 2007, the statute was amended to make clear that subsection (d) was indeed an exclusive list. The list was also expanded to include several other types of expenses, including “reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.” 7A-305(d)(11)(emphasis added). Soon thereafter, the Court of Appeals held that this very limited category of expert fees could only be awarded if the expert witness was under subpoena.  See Jarrell v. The Charlotte Mecklenburg Hosp. Auth., 206 N.C. App. 559 (2010) (reiterated in Peters v. Pennington, 210 N.C. App. 1 (2011) and Lassiter v. North Carolina Baptist Hospitals, Inc., 761 S.E.2d 720 (N.C. App. 2014)) [see comments section below for update].

Last week, a local news outlet reported that the 17-year-old quarterback of a Cumberland County high school was benched when school officials learned he was under investigation for allegedly sending “sexually explicit” photos of himself to his 16-year-old girlfriend. According to the report, officers took the teenager’s phone while investigating another incident and discovered photos of himself and his girlfriend on the phone. Now, both the teenager and his girlfriend are facing charges for “sexting” in what appears to have been a consensual exchange of nude photos between two teens in a dating relationship. Judging by the string of harsh comments to this report (which use various derogatory words to describe the charges), many people are outraged that such behavior, while improper, is a crime. Instead, they suggest that the behavior is a discipline issue that should be privately addressed by parents at home. In response to these concerns, this post examines the criminal laws in NC that possibly cover sexting and discusses their application to minors.

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This post was amended to reflect changes made to the definition of caretaker that occurred after the post was published by section 1 of S.L. 2015-123* (effective January 1, 2016) and Section 12C.1.(d). of S.L. 2016-94, effective July 1, 2016**  

In North Carolina, abuse, neglect, and dependency cases determine the child’s status as abused, neglected, or dependent by examining the child’s circumstances rather than determining the fault or culpability of a parent. In re Montgomery, 311 N.C. 101 (1984). In determining a child’s status, social services agencies and trial courts must look at the statutory definitions of abuse, neglect, and dependency. G.S. 7B-101(1), (15), (9). These definitions require the social services agencies and courts to determine who created the child’s circumstances. In abuse and neglect cases, was it the child’s parent, guardian, custodian, or caretaker? In dependency cases, was it the child’s parent, guardian, or custodian? If the child’s circumstances were not caused by a parent, guardian, custodian, or caretaker, the child is not abused, neglect, or dependent. A court order establishes the relationship of guardian [G.S. 7B-600; G.S. 35A-1202 & Article 6] or custodian [G.S. 7B-101(8)] to a child, but who is a caretaker? Continue Reading