Tag: due process
  • Due Process, Hearings, and Concealed Handgun Permits

    To legally carry a concealed handgun in North Carolina, a person must receive a permit from the county sheriff.  When considering an application for a permit, the sheriff is required to apply the criteria set out in G.S. 14-415.12.  Among other requirements, the applicant must be at least 21, must be a citizen or lawful permanent resident of the U.S., and must have successfully completed an approved firearms training course.  Several other factors also prevent the sheriff from issuing a permit to an applicant, such as the applicant’s ineligibility to possess a firearm under Federal law, conviction of a felony, adjudication of mental illness, or discharge from the military under less than honorable conditions.  Also, quite sensibly, one of the requirements for issuing a permit is that the applicant “does not suffer from a physical or mental infirmity that prevents the safe handling of a handgun.”  If none of the statutory restrictions applies, and the applicant otherwise meets all of the criteria, the sheriff “shall” issue the permit.  G.S. 14-415.12.

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  • Extended YDC Commitments and the 30-Day Notice Requirement

    Beginning at age 10, juveniles may be committed to the Division of Adult Correction and Juvenile Justice for placement in a youth development center (YDC), a locked residential facility that “provide[s] long-term treatment, education, and rehabilitative services” to delinquent youth. G.S. 7B-1501(29). When a district court judge commits a juvenile to a YDC, the judge must determine the maximum period of time the juvenile may remain committed before the Division must either release the juvenile or provide notice under G.S. 7B-2515 of its decision to extend the juvenile’s commitment to continue rehabilitative efforts. This post explains how to determine a juvenile’s maximum commitment period and the requirements for extending the commitment beyond this period.

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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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  • The Little Engine that Could: Article 27A, G.S. Chapter 1

    In my last post, I wrote about the office of the clerk of superior court and the clerk’s judicial authority.  I provided a basic framework for this authority and noted that that the clerk’s non-criminal authority falls into three main categories:

    1. estates and trusts,
    2. civil, and
    3. special proceedings.

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Four, the Right to Confrontation

    The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This protection applies to state court criminal actions by virtue of the Fourteenth Amendment. It also applies to juvenile proceedings because of In re Gault, 387 U.S. 1 (1967). Simply put, the right to confrontation allows juveniles to face their accusers in court and dispute their testimony through cross-examination. It allows juveniles to challenge the state’s evidence and protects them from the improper admission of certain testimonial hearsay under Crawford. This post explains a juvenile’s right to confront and cross examine witnesses and how far it extends in juvenile court.

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Three, the Right to Notice

    The right to receive “notice” of a criminal charge or other alleged misconduct is considered to be one of the core requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although due process requirements vary depending on the circumstances, at a minimum, a person is entitled to notice and an opportunity to be heard before suffering a loss of life, liberty, or property by the government. In re D.B., 186 N.C. App. 556, 564 (2007). This basic protection was not afforded to juveniles prior to In re Gault, 387 U.S. 1 (1967), which extended due process rights to children. Why is notice so important? When must notice be given? How much notice is required? These questions and others are answered in this third post in a series about Gault’s role in protecting the rights of juveniles in delinquency proceedings over the past fifty years.

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Two, the Right to Counsel

    This post is the second in a series focused on In re Gault, the U.S. Supreme Court case which mandated that the core due process rights applicable to adults in criminal proceedings must also be afforded to juveniles who are alleged to be delinquent. Perhaps the most significant of these rights is the right to counsel.

    The Supreme Court strongly condemned the denial of counsel to children in a proceeding which carries “the awesome prospect of incarceration” until the age of majority. 387 U.S. 1, 36. In such proceedings, a juvenile needs legal representation “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. Thus, in delinquency hearings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed,” the child and his or her parents must be notified of the child’s right to counsel, or if they cannot afford counsel, that counsel will be appointed. Id. The NC Juvenile Code codified and expanded the right to counsel in G.S. 7B-2000 by requiring the appointment of counsel for all juveniles who are alleged to be delinquent without the need to show indigency. Despite this progress, advocates still question whether the right to counsel for juveniles extends far enough. Continue Reading

  • Due Process Rights and Children: Fifty Years of In re Gault – Part One

    On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:

    • the right to notice of the charges;
    • the right to an attorney;
    • the right to remain silent; and
    • the right to confront and cross-examine witnesses.

    While this decision marked a watershed moment in children’s rights, the language of the Court was not absolute. The Supreme Court did not extend these rights to all juveniles. Gault applies only to juveniles whose adjudication of delinquency may result in commitment to a state institution, which excludes undisciplined juveniles. The Court also limited its holding to the adjudicatory stage, leaving states open to define due process in other stages of juvenile proceedings (i.e., pre-adjudication, disposition, and post-disposition). Gault, 387 U.S. at 13. As a result, the decision did not completely change the legal landscape but left a legal patchwork among state jurisdictions that continues today. This post is the first in a series of posts that will discuss Gault’s impact on juvenile delinquency proceedings in NC and whether Gault’s promise of due process rights for children has been fully achieved.

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  • Children in DSS Custody Who Need Treatment in a PRTF: There’s a Disconnect

    I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:

    1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
    2. the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.

    The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other. Continue Reading

  • What Is the Responsible Individuals List and Why Is Someone on It?

    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). Continue Reading

  • Non-Parents’ Right to Counsel in Abuse, Neglect and Dependency Cases

    Sara DePasquale wrote a blog on the Role of a Foster Parent in the A/N/D Court Action, which prompted me to explore the role of non-parents, and specifically their right to representation.

    Prior to the filing of an abuse, neglect and dependency (A/N/D) petition, the child may be in the care of grandparents, other relatives or friends. They are providing support and maintenance and making daily decisions about the health and welfare of the child. This may be more permanent substitute care compared to the temporary care provided by a foster parent.

    Once the petition is filed each parent named in the petition is appointed provisional counsel pursuant to G.S. 7B-602. But what about non-parents? The relative or friend who has custody of or is caring for the child may meet the statutory definition of “caretaker” or “custodian”. See G.S. 7B-101. Also, the child may have a court appointed guardian [G.S.7B-600; G.S. 35A-1202(7) & (10)] at the time the petition is filed. Does the caretaker, custodian or guardian have a right to court appointed counsel if they are indigent? Continue Reading

  • More Thoughts on Improper Delegation of Authority and Intermittent Confinement

    Over the past four months, I’ve had the opportunity to discuss the new juvenile delinquency legislation, S.L. 2015-58, with juvenile court officials from every part of the system – prosecutors, defenders, judges, and most recently, juvenile court counselors. While each group had distinct questions and concerns, one particular issue universally generated the most discussion. That issue was intermittent confinement (short periods of confinement in juvenile detention) or “IC days” and how the amendments to G.S. 7B-2506(12) and (20) change the way it is “imposed.” The amended statutes mandate that only judges may determine the imposition of IC days, whereas previously, judges were only required to determine the timing of the confinement. In a recent post, I explained that this change was designed to prevent judges from improperly delegating their authority to court counselors by suspending IC days and ordering court counselors to impose them immediately upon the juvenile’s noncompliance with certain conditions. This practice will soon be prohibited (as of December 1, 2015), since the new law clarifies that only the court may impose the confinement. However, the lack of specific guidelines has left judges and court counselors wondering what they must do to comply with the statute. Here are some additional thoughts about how I think this legislation will impact the court.

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  • Ohio v. Clark: What Does It Mean for Child Protective Services?

    Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services? Continue Reading

  • Juvenile Code Reform Legislation (HB 879) Becomes Effective December 1, 2015

    In a prior post, I wrote about SB 331, which proposed several changes to the delinquency subchapter of the Juvenile Code. That bill didn’t make it. Instead, it became HB 879 (enacted as S.L. 2015-58), which includes several new laws intended to either increase due process protections for juveniles, reduce further entry of juveniles in the delinquency system, or reduce juvenile confinement. Although it’s similar to the prior Senate bill, there are some important differences that you should know about before the new laws become effective on December 1, 2015. One of these laws involves a juvenile age increase, although it’s not quite the change for which “raise the age” advocates were lobbying.

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  • Can Probation Be Revoked in Juvenile’s Absence?

    Suppose you are a North Carolina district court judge presiding over a probation revocation hearing in the case of a juvenile who was adjudicated delinquent for a serious or violent offense. Present at the hearing are the juvenile’s counsel, the juvenile’s parent(s), the prosecutor, and the juvenile court counselor. In other words, everyone is present, except for the juvenile, who received notice but failed to appear. To complicate things, the juvenile’s maximum 2-year probation term expires today. Can you proceed? And, if so, can you revoke the juvenile’s probation and commit the juvenile to a youth development center (YDC)? Surprisingly, there doesn’t appear to be a clear answer. Here’s why.

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