How does the appointment of counsel to represent juveniles with cases that are transferred to superior court for trial as adults work? This can be a confusing question to answer given that the legal authority for the appointment of counsel changes at the time of transfer, there are important immediate legal issues following transfer, and there are so many different ways in which indigent defense services are provided across North Carolina. This blog will (1) identify the law that governs appointment of counsel when cases are in juvenile court and following transfer, (2) share recently released guidance from the N.C. Office of Indigent Defense Services (IDS) regarding appointment of counsel in matters that are transferred, and (3) suggest a procedure that could be followed to ensure that the rights of juveniles regarding appeals of transfer orders and conditions of pretrial release are ensured. Continue Reading
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
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
The SCRA and Juvenile Proceedings
*Note this post has been amended to reflect the December 2015 recodification of the SCRA
Earlier posts address the SCRA in family law actions and non-judicial foreclosures. It’s my turn to address the SCRA’s application to abuse, neglect, dependency (A/N/D), and termination of parental rights (TPR) actions.
When and Why Does the SCRA Apply?
The SCRA applies to any judicial or administrative proceeding, except for criminal proceedings. 50 U.S.C. § 3912(b). There is no exception for A/N/D or TPR actions, which are “child custody’ proceedings. G.S. 50A-102(4). Child custody proceedings are specifically referenced in the SCRA. 50 U.S.C. § 3931(a) and -3932(a). Continue Reading
Appointed Counsel in Child Support Cases: How Far Do You Go?
An indigent parent in a child support case is entitled to appointed counsel only for contempt proceedings. But child support cases can be complex. Where should appointed counsel draw the line when representing these parents? Should they limit representation to the actual contempt proceeding or do they delve further? Is the underlying order valid? Is there a good cause to adjust the arrears or is there a change of circumstances justifying a modification of support? Judges must approve the fee applications for the time spent on cases, so counsel should take care to act within the scope of their representation.