Archive

• It’s Complicated: Venue vs Jurisdiction in A/N/D and TPR Actions

  This entry was contributed by Sara DePasquale on February 22, 2017 at 1:22 pm and is filed under Child Welfare Law.

  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

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

  This entry was contributed by LaToya Powell on November 2, 2016 at 11:15 am and is filed under Juvenile Justice.

  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

  This entry was contributed by LaToya Powell on October 26, 2016 at 6:00 am and is filed under Juvenile Justice.

  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 entry was contributed by LaToya Powell on September 14, 2016 at 10:17 am and is filed under Juvenile Justice.

  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

  This entry was contributed by LaToya Powell on August 10, 2016 at 9:33 am and is filed under Juvenile Justice.

  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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• 2016 Legislative Changes Impacting Child Welfare

  This entry was contributed by Sara DePasquale on July 20, 2016 at 5:45 am and is filed under Child Welfare Law.

  *This post was updated on August 1, 2016 to reflect the Session Law for H424.

  The 2016 Appropriations Act (S.L. 2016-94) addresses more than the State’s budget. Section 12.C makes substantive changes to the General Statutes in Chapter 7B that govern abuse, neglect, or dependency proceedings. The statutory amendments became effective on July 1st. In addition, S.L. 2016-115 (H424), creates a new criminal statute, “The Unlawful Transfer of Custody of a Minor Child,” and is effective for offenses committed on or after December 1, 2016. The law also amends the definition of a neglected juvenile in G.S. Chapter 7B.  Continue Reading

• New Book! Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases

  This entry was contributed by Sara DePasquale on June 17, 2016 at 5:00 am and is filed under Child Welfare Law.

  This Sunday is Father’s Day, a day that celebrates fathers. It’s the perfect time to announce my new book, Fathers and Paternity: Applying the Law in North Carolina Child Welfare Cases. The book recognizes the role of fathers in abuse, neglect, or dependency cases.  Put simply, they have a role. Fathers are necessary parties to the court proceeding. See G.S. 7B-401.1(b). Fathers impact a child’s placement, visitation, and permanent plan.

  Unfortunately, every child does not have a father who has been identified by a marital presumption, acknowledgment, or judicial determination of paternity. Even when a father has been identified, his paternity has not necessarily been established, which allows for it to be challenged. The uncertainty in knowing who a child’s father may or may not be has resulted in cases where no father is named or the wrong man is named as a respondent father in the court action.  Continue Reading

• When Parental Discipline Goes Too Far, It’s Child Abuse

  This entry was contributed by Sara DePasquale on May 25, 2016 at 5:34 am and is filed under Child Welfare Law.

  Before On the Civil Side existed, the story about NFL running back, Adrian Peterson, pleading no contest to a misdemeanor reckless assault charge for disciplining his 4-year old son with a switch was national news. I wrote about what I thought would happen to him here in NC for our Criminal Law Blog: Parental Discipline: When Is It Abuse and/or a Crime? Since I wrote that post, the NC Court of Appeals published its first opinions interpreting the definition of abuse as applied to a child protective case that says:

  a child is abused when his or her parent, guardian, custodian, or caretaker uses or allows to be used cruel or grossly inappropriate procedures or devices to modify the child’s behavior.

  G.S. 7B-101(1)c.

  In other words, a child is abused when parental discipline goes too far.  How does a court determine whether a parent has gone too far? Continue Reading

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

  This entry was contributed by Sara DePasquale on April 27, 2016 at 1:57 pm and is filed under Child Welfare Law.

  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

  This entry was contributed by Austine Long on February 5, 2016 at 8:54 am and is filed under Child Welfare Law.

  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