When a city, county, or other unit of local government is sued for negligence or other torts, it’s common practice for the unit’s attorney to file a motion asking the trial court to dismiss the lawsuit based on the defense of governmental immunity. (See blog posts available here and here for an explanation of governmental immunity fundamentals.) Many local government attorneys believe that, if the trial court denies such a motion, the unit always has the right to an immediate appeal. As a recent decision by the North Carolina Court of Appeals reminds us, however, whether the unit may immediately appeal can depend on how the immunity defense is framed in the motion. This blog post aims to
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New Regulations Regarding Contempt in IV-D Child Support Cases
Effective January 19, 2017, the federal Department of Health and Human Services (DHHS) adopted a final rule titled “Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs.” 81 Federal Register 93492 (Dec. 20, 2016). This rule mandates numerous changes to the policies and procedures of state child support enforcement programs, but one change of particular importance to state trial courts involves the use of contempt procedures to enforce child support obligations. According to the Comments to the new rules, the change in the federal regulations regarding the use of contempt is intended to ensure that the “constitutional principles articulated in Turner v. Rogers, 564 U.S. 431 (2011)[addressing the rights of obligors in child support contempt proceedings], are carried out in the child support program, that child support case outcomes are just and comport with due process, and that enforcement proceedings are cost-effective and in the best interest of the child.” 81 FR at 93532.
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Where Oh Where Could My Lost Will Be?
You did your homework, made your estate plans, and executed your last will and testament. However, after your death, your family or friends are unable to locate your original will. They may have only a signed or unsigned copy or nothing at all. Perhaps the original will was destroyed in a fire or lost in a move or a family member was told that the handwritten will wasn’t worth the paper it was written on and they tore it up and threw it away (true story) or your relatives simply are unable to find your original will (tip to friends and family – don’t forget to check the family bible or the freezer).
In these situations, is all hope lost? Will your property descend pursuant to intestate succession (i.e. to heirs according to State law) despite your careful estate planning? Well, not quite. It is possible to probate a lost or destroyed will in North Carolina upon certain proof to the court. This process is not set forth in statute, but instead is derived from case law. So where exactly does one seeking to probate a lost or destroyed will start? Below are some key questions to consider when facing this situation. Continue Reading
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Due Process Rights and Children: Fifty Years of In re Gault – Part Five, the Privilege Against Self-Incrimination
Juvenile defenders, the court system, the governor, and other advocates recently celebrated a historic moment in juvenile justice. Monday was the 50th Anniversary of the In re Gault decision, which guaranteed juveniles the right to due process in delinquency proceedings. In honor of the event, this multiple part series on due process has explored the history of Gault and how it transformed juvenile court by ensuring that juveniles have the right to notice, the right to counsel, and the right to confrontation and cross-examination. This final post discusses the Fifth Amendment privilege against self-incrimination and the protection it provides to juveniles, assuming they understand what it means and know how to assert it.
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Tick Tock: Mandatory Time Requirements to Enter A/N/D and TPR Orders
Subchapter I of G.S. Chapter 7B (the Juvenile Code) governs child abuse, neglect, dependency, and termination of parental rights cases in North Carolina. The Juvenile Code “sets out a sequential process for abuse, neglect, or dependency cases, wherein each required action or event must occur within a prescribed amount of time after the preceding stage in the case.” In re T.R.P., 360 N.C. 588, 593 (2006). Included in the statutory time frames are the timing for entry of orders. What exactly does the Juvenile Code require? And, why does it matter? Continue Reading
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A Juvenile’s Request for a Parent During Custodial Interrogation Must Be Unambiguous
In December, the North Carolina Supreme Court filed its long-awaited opinion in State v. Saldierna, __ N.C. __, 794 S.E.2d 474 (December 21, 2016), a juvenile interrogation case heard by the court on February 16, 2016. This decision marks the first time the court has addressed the rights of a juvenile during a custodial interrogation since J.D.B. v. North Carolina, 564 U.S. 261 (2011), the landmark U.S. Supreme Court case which made age a relevant factor in the Miranda custody test (and reversed the state supreme court on this issue). Saldierna did not directly involve whether the juvenile was in police custody, since he was clearly under arrest. The issue, instead, was whether a juvenile must make a clear and unambiguous request in order to exercise the juvenile’s statutory right to have a parent present during a custodial interrogation. The Supreme Court said yes, reversing the Court of Appeals on this question. This post discusses whether the ruling can be reconciled with J.D.B. and Juvenile Code statutes governing custodial interrogations. Continue Reading
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It’s Complicated: Venue vs Jurisdiction in A/N/D and TPR Actions
Within North Carolina, the appropriate location of a district court where an abuse neglect or dependency (A/N/D) action is filed is a matter of venue. GS 7B-400. And the appropriate location of the district court where a termination of parental rights (TPR) action is filed is a matter of jurisdiction. GS 7B-1101. Why are they different? Because the statutes governing A/N/D and TPR proceedings have different requirements and impose different limitations on the parties and the court.
The General Assembly has the power to “fix and circumscribe the jurisdiction of the courts,” which can require certain procedures. In re T.R.P., 360 N.C. 588, 590 (2006). A/N/D and TPR cases are statutory in nature and set forth specific requirements that must be followed. Id. In an A/N/D or TPR action, the first place to look is the Juvenile Code (GS Chapter 7B) because it establishes both the procedures and substantive law for these types of juvenile proceedings. See GS 7B-100; -1100. Continue Reading
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The General Specific: The N.C. Supreme Court Decision In re Foreclosure of Lucks
UPDATE: On March 26, 2019, the NC Court of Appeals in Gray v. Federal National Mortgage Association interpreted Lucks and held while the doctrine of collateral estoppel does not apply to an order not authorizing a non-judicial foreclosure sale, it does apply to an order authorizing a sale.
On December 21, 2016, the North Carolina Supreme Court published a final set of opinions for the year. Without a doubt, one case in particular stopped me in my tracks. The case, In re Foreclosure of Lucks, will have a significant impact on G.S. Chapter 45 power of sale foreclosures going forward. ____ N.C. ____ (Dec. 21, 2016). Here’s both the general and the specific about what the court had to say. Continue Reading
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Preparing for the Effective Date: UAGPPJA Resources
Tomorrow, December 1, 2016, G.S. Chapter 35B goes into effect in North Carolina. The law incorporates provisions of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). As I noted in this earlier post, it applies to all new incompetency and adult guardianship proceedings filed on or after December 1st and requires the court to ensure jurisdiction is proper under Chapter 35B before proceeding with the case. Keep in mind that if a case is already pending as of December 1st, the court is not required to apply the G.S. Chapter 35B analysis related to jurisdiction for initial filings, even if the hearing takes place after December 1st.
UAGPPJA, as adopted in G.S. Chapter 35B, also provides a new mechanism for transferring existing adult guardianship cases to and from North Carolina and for registering out of state guardianship orders in North Carolina. The transfer and registration provisions apply as of December 1, 2016 to all cases in NC, regardless of whether they were filed before, on, or after that date.
The text of G.S. Chapter 35B is now available on the N.C. General Assembly’s website. Note the statutes were renumbered when they were codified. Therefore, the statutory references in the session law, S.L. 2016-72, are no longer correct. In addition to the primary law, I wanted to use this post to identify some other resources now available to assist with the implementation of UAGPPJA in N.C. Continue Reading
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Use of deposition testimony at trial
Depositions are primarily a discovery tool. When it comes to trial, live witness testimony is “more desirable,” Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 690 (1992), and Rule of Civil Procedure 43 states that, “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.” In “sharply limited” circumstances, however, deposition testimony may be used at trial, Warren v. City of Asheville, 74 N.C. App. 402, 408 (1985), and Rule 32 of the North Carolina Rules of Civil Procedure sets out (most of) those circumstances.
Under Rule 32, deposition testimony may be used at trial if it meets three criteria:
- It is being used against a party who was present or represented at or had reasonable notice of the deposition;
- It falls within one of the categories in Rule 32(a)(1) through (a)(4); and
- It is admissible under the Rules of Evidence (applied as though the witness were present and testifying).