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On October 1, 2015, several new statutes affecting abuse, neglect, and dependency cases went into effect. Three new statutes specifically address decision-making standards related to social and cultural activities for children who are placed in a county department’s custody because of abuse, neglect, or dependency. The new statutes were created by S.L. 2015-135 and are

• G.S. 131D-10.2A: Reasonable and Prudent Parent Standard,
• G.S. 7B-903.1: Juvenile Placed in Custody of Department of Social Services, and
• G.S. 48A-4: Certain Minors Competent to Contract.

In discussing my experience as a juvenile defender with non-lawyers, I have learned that many people believe that juvenile proceedings are completely confidential and under no circumstances can anyone learn about the case or access the records. They also think juvenile matters are not very significant and have no real consequences beyond the juvenile court process.

UPDATE:  The federal Protecting Tenants at Foreclosure Act was restored without expiration, effective June 23, 2018.  This federal law must be read in conjunction with G.S. 45-21.29 and G.S. 45-21.33A provisions.  The full text of the PTFA is available here.

UPDATE #2: In response to the restoration of the federal PTFA, Session Law 2019-53 repealed G.S. 45-21.33A and references to G.S. 45-21.33A in G.S. 45-21.29. 

The protections afforded to tenants in foreclosure proceedings under the federal Protecting Tenants at Foreclosure Act (PTFA) of 2009 ended on December 31, 2014.  The act expired and Congress did not extend it.  Effective October 1, 2015, the North Carolina General Assembly enacted a law that partially fills the hole left by the expiration of the PTFA.  This post covers some of the key changes and protections resulting from a new section G.S. 45-21.33A created by S.L. 2015-178 (H 174).

In my last post, Imputing Income: Voluntary Unemployment is Not Enough, I wrote about the bad faith rule; the long-established rule that child support and alimony orders must be based on the actual present income of the parties unless there is cause to impute income. When income is imputed, a support order is based on earning capacity rather than actual income. The bad faith rule provides that earning capacity can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation.

So what findings of fact are sufficient to establish bad faith?

For hundreds of years, the law has provided a procedure for landlords to obtain assistance from the justice system in ousting a tenant and taking back rental property. In North Carolina in the late 19^th Century, just as today, “proceedings in ejectment” were one of the most common types of civil cases filed. I recently spent some time reading many older landlord-tenant cases in an effort to trace the development of the law pertaining to subject matter jurisdiction in summary ejectment cases. I began with some reservations about the continued relevance of these cases. After all, North Carolina’s entire court system was revised – and the Rules of Civil Procedure adopted– after many of these cases were decided. Justices of the peace no longer hold court, and appeal from small claims court is to district—not superior—court today. What I found striking in doing this research was actually how little has changed. The questions in the late 1800s may have used different legal terminology, but would be familiar to any small claims magistrate. One of the most common issues, for example, was whether a seller/landlord could regain possession of property subject to a rent-to-own agreement by way of summary ejectment.  Another was whether a buyer by way of foreclosure could use summary ejectment to oust the former owner. What I found is that the rules governing jurisdiction in ejectment cases have remained remarkably consistent in application, although the underlying rationale for the rules has, from the beginning, been considerably more variable. This post attempts to summarize those procedural rules where they are clear. In my next post, I’ll discuss some troublesome areas in which clarity is lacking.

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 […]

If the juvenile court or county department intends to place a child in an abuse, neglect, and dependency (A/N/D) case with a parent who lives outside of North Carolina, does the Interstate Compact on the Placement of Children (ICPC) apply?

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 […]

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.”

Maybe that statement is a little extreme, but it is intended to make a point. Alimony and child support obligations must be determined based on actual present income. Earning capacity rather than actual income can be used only when a party is intentionally depressing actual income in deliberate disregard of a support obligation. In other words, it is not appropriate for an order to be based on what a person should be earning- or on minimum wage – rather than on what that person actually is earning unless evidence shows the party is acting in bad faith and the court actually includes that conclusion of law in the order.

READ POST "Imputing Income: Voluntary Unemployment is Not Enough (September 18, 2015)"

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 […]