Sibling Association as a Constitutional Right

Sibling visitation is not an issue that has troubled too many legislatures lately. Neither has the issue much bothered the courts. Yet the issue is no stranger to those who practice in juvenile court and there are those who whould urge upon the reader the importance of recognizing simbling visitation as a value if not as a right. The unfortunate fact is that sibling groups frequently get caught in the fray of a juvenile petition and very often, it is the bond between siblings that is the only thing that is stable in each child's life. Given such considerations, should the law be so quick to subordinate a child's ability to associate with a sibling to the desires of the parents, or if the parents are unfit, the guardian or legal custodian? This is currently the law under Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) and its progeny.

Admittedly, one is always asking for trouble when one interjects another party's interests (i.e. the child's) into the fray between parents and the State. Yet this is already being done in North Carolina with the statutory requirements that are already in place. These requirements protect a child's interests by requiring that the child's best interests be taken into consideration by and be the pole star by which all decisions are made by every juvenile court judge. To ensure that theses interests are being looked after, the law requires that every child in juvenile court be represented by a GAL and that the GAL be afforded counsel.Thus,  if one would argue against recognition of sibling visitation issues on grounds of widening the ground war, the argument fails as the war is already widened (or at least so long as the N.C. Legislature provides the funding and statutory basis for the GAL Program).

But granted that the child's interests are being represeted through existing structures, does this mean that the collective child group's interests are being considered? Is there a fundamental interest here that transcends the individual child that is of such interest and of such imporance that it should be protected? The answer to this question, admittedly, does not readily avail itself simply. And even if such an interest is not being recognized, except perhaps derivatively, there is likewise no clear answer as to what, if anything, is an appropriate remedy. Another GAL for the collective siblings? Legislation that requires keeping sibling group visitation absent extraordinary circumstances (i.e. separate adoptions)?

For one person who advocates for greater recognition of sibling rights to association, see Christopher D. Vanderbeek, Oh Brother! A California Appeals Court Reaffirms the Denial of Necessary Access for Separated Children to Build and Maintain Sibling Relationships , 350 UC Davis J. of Juv. Law & Policy 349-381 (2009) at the following web address: http://jjlp.law.ucdavis.edu/archives/vol-13-no-2/Vanderbeek.pdf

Parent Attorneys must Meet with Clients Before Court

Meet with your client before court!  It never ceases to amaze me how often parent attorneys put off having critical conversations with their client until the day of court. I know the argument-there is no time, child welfare clients are hard to track down, etc.  But are such excuses really valid? Would an attorney defending a criminal case make such arguments and not expect repercussions , whether on appeal on a claim for ineffective assistance of counsel, or before the State Bar?

                Meeting with your client before court can help you to better represent your client’s position. Perhaps your client kept an appointment for a substance abuse assessment and is now receiving outpatient treatment.  By learning about this ahead of time, you can present the court with exhibits that are favorable to keeping a plan of reunification on the table. On the other hand, the last place you want to find out about a client’s big slip up is the day of court. By learning about the facts early the attorney has the latitude to develop effective damage control which may keep DSS working with your client just a little longer. Finally, meeting with your client consistently and regularly outside of court shows your client you are investing in them. This may lead to better performance by the client and it may get them to show up to court more consistently.

                Setting  an expectation in person, face to face,  achieves better client outcomes more often than not.  Zealous representation is not a solo act, it requires a partnership between the advocate and the client built upon mutual trust. The expectation that is set by early consultation is that the client will be on their best behavior and the advocate in the child welfare setting will use everything at their disposal to highlight that good behavior. It simply comes down in large part to the attorney simply  “being there”, for you can’t represent that which you do not know.

In the Matter of J.V.J: Rewarding Bad Behavior?

 

On March 1, 2011, the North Carolina Court of Appeals filed the case of In the Matter of J.V.J. (COA10-1074). An Orange County appeal, the issue in controversy being an adjudicatory order in which the Respondent Juvenile was adjudicted a delinquent based upon alleged assaultive actions upon a school resource officer. The Court's review confined itself to the sole issue of whether the adjudication was adequaetely supported by the trial court's findings of fact. The Court remanded the case back to the trial court due to that court's rather palltry factual findings which, among other things, failed to reference that the findings were made by clear cogent and convincing evidence.

Admittedly, I am sure the reader would agree, that this case is one that should hardly raise an eyebrow. That is, unless one considers the facts a little more deeply.

First of all, there is the behavior of the Respondent to which there was abundant and largely undisputed evidence at trial. The presiding judge found that the Respondent initially raised a commotion in the classroom because of something his teacher had said. This led to a call to the school resource officer which then led to the Respondent assaulting him, getting so far out of kilter that a standoff finally ensued, the Respondent threatening to throw a chair at the Resource Officer while the Resource Officer threatening to use his Tazer on the Respondent.

Next there is the behavior of the Respondent at trial. The Orange County trial court had adjudicated the case on January 20, 2010 and had set the case for disposition on February 17, 2010. The case was continued on motion from the Respondant on February 18, 2010, and again on March 17, 2010, both occasions due to the Respondant's unavailability.

Finally, there is the behavior of the Respondent on appeal. The Court has long held that “‘[a]n adjudication of delinquency is not a final order’” and is therefore unappealable. In re M.L.T.H., __N.C. App. __, __, 685 S.E.2d 117, 121 (2009) (quoting In re Taylor, 57 N.C. App. 213, 214, 290 S.E.2d 797, 797 (1982));. The Juvenile Code also speaks to the issue. See N.C. Gen. Stat. § 7B-2602. These facts were acknowledged by both the appellant and the appellee as well as the reviewing panel of the Court of Appeals. Nonetheless, the Respondent filed his appeal asking for relief by means of a Writ of Certiori, seeking in the process to get special consideration despite the fact that, based on the facts which reveal no vital issues of public importance, no special consideration was due.

So, despite the Respondent's assaultive and disreprespective behavior, despite the juvenile's rejection of statutory law and prior prescedent which would simply have him wait until the disposition in his case was heard, in short despite all this continuous stream of bad behavior, the juvenile is rewarded not only with certiori being granted but with the case being remanded back to the trial court.

It is a maxim of the law that those who would command that equity be done unto them must themselves be equitable. Somehow, somewhere, this principle has gotten lost in this case. Given the lofty aims and directives of the Juvenile Code with regard to adjudicating deliquent youth, those platitudes which suggest that the State embraces redirection and rehabilitation of the wayward to set them back on a path of right conduct, it seems that just the opposite has been accomplished here.

West Publishing now pre-ordering for North Carolina Juvenile Code: Practice and Procedure, 2011 ed.

The most comprehensive work published in North Carolina on all topics relevant to child welfare, termination of parental rights, delinquent and undisciplined juveniles. Currently in its ninth annual edition, West Publishing is now taking pre-orders for the work with an expected fulfillment date of April 12, 2011.

Summary Description

This treatise discusses the main topics germane to child welfare and juvenile delinquency and undisciplined cases. It focuses on procedure in the context of the most current case law and statutory requirements. A chapter is devoted to termination of parental rights cases, involving procedural requirements in private termination cases as well as those brought by a county department of social services agency. In addition, the applicability of the general rules of evidence to juvenile cases is covered, including documentary and photographic evidence, privileges, and commonly encountered hearsay issues. Extensive forms are provided, including discovery forms related to confidential material production

Camreta v. Greene: Will the U.S. Supreme Court look again at Fourth Amendment implications of social services investigations?

On March 1,2011,  the United States Supreme Court heard oral argument in the consolidated cases of Camreta v. Greene and Alford v. Greene. The center of the controversy, an in-school child interview by a social worker investigating a child protective services report, brings to the forefront issues  regarding the applicability of the Fourth Amendment to social services investigations.

For good or ill, the Supreme Court has an opportunity to revisit the issues that have long been neglected since the court entered its 1972 ruling in Wyman v. James. In that case, the Court authorized a warrantless search by social services of the home of an AFDC recipient, holding among other things that the search was reasonable and that it did not implicate the warrant clause of the Fourth Amendment.  Since that time, a number of Circuits have narrowly construed application of Wyman to its own facts and have instead imposed a warrant requirement in a number of situations involving social worker interviews of children (curiously the Fourth Circuit is not one of them). In Camreta, the Ninth Circuit, while not mandating an across the board requirement for a warrant requirement absent consent or exigent circumstances, nonetheless indicated that based on the facts of that case, a warrant was necessary before the social worker could lawfully conduct an interview with the child in question.

From a review of the Camreta transcript, the High Court doesn’t seem terribly inclined toward  rendering a ruling on the merits of the cases. The Court briefly entertained and then seemed to brush aside considerations that there no longer existed a controversy and that the cases which brought  the matter to the court’s attention were now moot (the plaintiff now being 17, living in another state and not seeking monetary damages). Nonetheless, the Court gave no indication it desired to get its hands dirty with the details in Camreta. Rather, there was every appearance that the Court will simply  vacate the holding of the Ninth Circuit’s decision, thus eliminating the case as precedent and restoring qualified immunity upon governmental officials who choose to interview children without a warrant.

Scotusblog’s Case Page for Camreta can be found at http://www.scotusblog.com/case-files/cases/camreta-v-greene/ . Appellant/appellee as well as amicus briefs can be found on this page

as well as a written and audio transcript.