When a trial court presiding over a Juvenile case is conducting a review pursuant to N.C. Gen. Stat. 7B-906 or conducting a permanency planning review pursuant to N.C. Gen. Stat. 7B-907, the trial court is largely unbridled in its ability to receive and examine evidence which will aid its review and enable its determination of ". . .the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. 7B-906(c); 7B-907(b). Typically, the County Department of Social Services as well as the GAL office submit reports which, along with social worker and GAL volunteer testimony, comprises the majority of evidence received in most court rooms in North Carolina most of the time.
But aren't parent attorneys missing an opportunity here?
Nothing in the statute precludes the parent from making more of an evidentiary showing. In fact, information from the parent is the first thing mentioned with regard to what a trial judge may consider. Yet, almost without fail parents decline to take the stand to testify on their own behalf. Sometimes (well, admittedly a lot of the time) there is a very good reason for not taking the stand. But even if one grants that a parent's testimony may not be the wisest thing to prescribe in all occasions, there is always something that can be done which incurs minimal risk and which at the same time places the parent on a little better evidentiary footing than they would maintain otherwise: developing and submitting a parent report.
The report need not be elaborate. It can be only a page or two. But it should outline what efforts the parent is taking to comply with the orders of the court. This may include any number of narratives, from the quest to become employed, to finding a safe, appropriate home, to attending NA or AA, or the times that the parent has attended outpatient substance abuse treatment in the past three months. The report can include attachments too, from copies of employment applications and child support receipts to counseling attendance logs and letters of support from sponsors or others who might be willing to advocate on behalf of the parent in the community. Of course, one should not spare an opportunity of including photographs of visitation, to show the judge not only that the parent was there but that the visit went well and was beneficial to both parent and child.
While time is short and the pay on juvenile cases is low, everyone is expected to advocate zealously on behalf of their clients, however troubled or lowly they might be. To this end, consider what you might effectuate to this end through a parent court report. It may put a better face on an otherwise complicated evidentiary situation. On the other hand, it may be the one factor that sends the kids back home with your client.
Wednesday, 29 June 2011
Thursday, 16 June 2011
J.D.B. v. North Carolina: The U.S. Supreme Court Goes Down the Slippery Slope with Regard to Juvenile Interrogations
When a juvenile is taken into custody, it is incumbent upon law enforcement to properly advise the juvenile of their Miranda rights prior to conducting any interrogation. N.C. Gen. Stat. 7B-2101. Where the juvenile is under the age of 14, any statement made by the juvenile outside the presence of their parent, guardian, custodian or attorney is inadmissible. Id. However, the question that most frequently confronts North Carolina courts is that of whether a juvenile has actually been taken into custody.
To undertake such an inquiry, the courts of this State have followed the objective test originally set out by the U.S. Supreme Court in U.S. v. Mendenhall, 446 U.S. 544 (1980). Under this test, a reviewing court determines “whether a reasonable person in the position of the defendant would believe himself to be in custody or that he had been deprived of his freedom of action in some significant way." In re I.R.T., 184 N.C. App. 579, 583 (2007). Relevant considerations for an objective inquiry have included (1) the threatening presence of police officers; (2) the display of a weapon by an officer; (3) physical touching of the suspect; and (4) the choice of language used by the interrogator. Id. at 584. The Court of Appeals, in its 2007 decision in In re I.R.T. broadened the factors that could be considered to include a juvenile’s age. Id. This inclusion was not without its critics who claimed that the Court of Appeal’s inclusion of the juvenile’s age would introduce a subjective element into an otherwise objective analysis and in so doing, would foster uncertainty in police investigations by forcing an interrogating officer to guess whether a juvenile was “in custody”. See Jonathan S. Carter, You're Only as "Free to Leave" as You Feel: Police Encounters with Juveniles and the Trouble with Differential Standards for Investigatory Stops Under In re I.R.T., 88 N.C.L. Rev. 1389, 1389-1442 (2010). The N.C. Supreme Court weighing in on this issue in its decision in In re J.D.B, agreed with the critics and chose to not include a juvenile’s age as one of the factors in determining whether a juvenile had been taken into custody. In re J.D.B., 363 N.C. 664, 686 S.E.2d 135 (2009).
Today the U.S. Supreme Court, taking up the N.C. Supreme Court’s decision in J.D.B., reversed and remanded. Indeed, a juvenile’s age is to be a relevant consideration in determining objectively whether a reasonable person would believe that a juvenile was free to leave an interrogation. See J.D.B. v. North Carolina, No. 09–11121. (U.S. S. Ct. June 16, 2011). Supporting the Court Majority’s position were a host of arguments including commonsense conclusions about child behavior that juveniles “. . .often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” that they “. . .are more vulnerable or susceptible to . . . outside pressures” than adults and finally that the law has historically reflected the same commonsense assumptions by its impositions of disability in contract and in other legal situations. But as the critics stated earlier, as do Justices Roberts, Scalia, and Thomas today, there will be a price to pay . Now that the door has been opened to injecting a subjective consideration into what was previously a fairly straight-forward, objective test, what is to stop further considerations from being injected? As Jonathan S. Carter suggests, what prevents race, gender or economic status from being considered? And from the standpoint of law enforcement, how are they going to know (without knowing much about the suspect) whether some subject factor within the juvenile’s make-up and circumstances will lead the juvenile to believe (as perceived by a “reasonable person”) that the juvenile is not free to leave an interrogation when in facts are to the contrary?
The J.B.D. v. North Carolina opinion can be read at http://www.supremecourt.gov/opinions/10pdf/09-11121.pdf
The J.B.D. v. North Carolina opinion can be read at http://www.supremecourt.gov/opinions/10pdf/09-11121.pdf
Tuesday, 7 June 2011
The Curious Case of Undisciplined Juvenile Representation
Since the Supreme Court took up the case of In re Walker, 282 N.C. 28 (1972), there has been a decided dicotomy between delinquent and undisciplined cases when it comes to the right of representation. The Walker Court, in its holding, differentiated delinquent cases from those in which undisciplined behavior was merely alleged on a number of levels, the principle diferentiation being that at a hearing in which a child was adjudicated undisciplined ". . .could not result in. . .commitment to an institution in which. . .freedom would be curtailed." Id. at 37. The practical import of this distinction is that the child alleged to be undisciplined is not automatically entitled to legal counsel.
So how does this square with N.C. Gen. Stat. 7B-2000 which states that "[a] juvenile alleged to be within the jurisdiction of the court has the right to be represented by counsel in all proceedings"?
The simple answer is that it squares perfectly. If one reads further, the statute makes a distinction between when counsel can be assigned, confining the possibility of appointment in an undisciplined case to those circumstances where the alleged or adjudicated undisplined child is faced with a contempt proceeding. Again, the possibility of confinement was exactly what was important to the Walker Court in determining whether a right to counsel existed. And reading further, one finds that in such circumstances in which an alleged or adjudicated undiscplined child qualifies for the appointment of counsel, that child is entitled to the benefit of a conclusive presumption of indengence. Thius, appointment is automatic regardless of the financial wherewithall of the child.
So how does this square with N.C. Gen. Stat. 7B-2000 which states that "[a] juvenile alleged to be within the jurisdiction of the court has the right to be represented by counsel in all proceedings"?
The simple answer is that it squares perfectly. If one reads further, the statute makes a distinction between when counsel can be assigned, confining the possibility of appointment in an undisciplined case to those circumstances where the alleged or adjudicated undisplined child is faced with a contempt proceeding. Again, the possibility of confinement was exactly what was important to the Walker Court in determining whether a right to counsel existed. And reading further, one finds that in such circumstances in which an alleged or adjudicated undiscplined child qualifies for the appointment of counsel, that child is entitled to the benefit of a conclusive presumption of indengence. Thius, appointment is automatic regardless of the financial wherewithall of the child.
Thursday, 2 June 2011
Camreta v. Green: Social Services Investigations Given a Reprieve for Now
As suggested in an earlier posting, the Supreme Court took no substantive position with regard to the issues case of Camreta v. Green. The 9th Circuit case, which factually centered around an elementary school interview by state child protective services worker and a sheriff's deputy, on the trial level involved a 42 U. S. C. §1983 claim, alleging that the in-school interview breached the Fourth Amendment’s proscription on unreasonableseizures. The District Court granted summary judgment to the officials. The Ninth Circuit affirmed, holding that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct.
Upon review by the Supreme Court, the Court was initially troubled about two issues; first the issue of whether the prevailing party from the 9th Circuit case could seek review from the Supreme Court and secondly, whether the issues before the Court were moot, since the sheriff's deputy no longer worked in law enforcement and the individual initially interviewed by the social worker and the deputy no longer lived in the state of Oregon where the suit originated and furthermore was days away from her 18th birthday.
The Court dispensed with both of these issues, finding that the prevailing parties could seek review before the Supreme Court and that the case was indeed moot. Nonetheless, the court applied a rule of "vacatur," which, while recognizing that the case was moot, nonetheless allowed the Court to apply any remedy that justice required. In this case,such a remedy required that the 9th circuit holding be vacated, thus effectively stripping the decision of any binding effect in the Ninth Circuit.
All that having been said, it would be a wise practice for every county social services worker in child protective services to be extremely cautious when conducting interviews with children outside of the presence of a parent, realizing that such litigation can and will likely arise again under the right set of circumstances.While it is an interesting claim that a parent has a reasonable expectation of privacy with regard to their children in a public school setting, at least one other circuit has found constitutional violations with regard to child interviews by social workers when they took place in a private school setting. See Doe v. Heck, 327 f.3d 492 (7th Cir. 2003). Thus, rather than risk litigation, where an alternative to the private interview exists (and this author is very aware of how some parents make this extremely difficult) that alternative should be given preferred status. And as always when their is a question about the appropriateness of a given proposed action in a social services investigation, legal counsel should be sought first, not after the fact (when the damage has already been done).
The opinion can be found at http://www.supremecourt.gov/opinions/10pdf/09-1454.pdf
Upon review by the Supreme Court, the Court was initially troubled about two issues; first the issue of whether the prevailing party from the 9th Circuit case could seek review from the Supreme Court and secondly, whether the issues before the Court were moot, since the sheriff's deputy no longer worked in law enforcement and the individual initially interviewed by the social worker and the deputy no longer lived in the state of Oregon where the suit originated and furthermore was days away from her 18th birthday.
The Court dispensed with both of these issues, finding that the prevailing parties could seek review before the Supreme Court and that the case was indeed moot. Nonetheless, the court applied a rule of "vacatur," which, while recognizing that the case was moot, nonetheless allowed the Court to apply any remedy that justice required. In this case,such a remedy required that the 9th circuit holding be vacated, thus effectively stripping the decision of any binding effect in the Ninth Circuit.
All that having been said, it would be a wise practice for every county social services worker in child protective services to be extremely cautious when conducting interviews with children outside of the presence of a parent, realizing that such litigation can and will likely arise again under the right set of circumstances.While it is an interesting claim that a parent has a reasonable expectation of privacy with regard to their children in a public school setting, at least one other circuit has found constitutional violations with regard to child interviews by social workers when they took place in a private school setting. See Doe v. Heck, 327 f.3d 492 (7th Cir. 2003). Thus, rather than risk litigation, where an alternative to the private interview exists (and this author is very aware of how some parents make this extremely difficult) that alternative should be given preferred status. And as always when their is a question about the appropriateness of a given proposed action in a social services investigation, legal counsel should be sought first, not after the fact (when the damage has already been done).
The opinion can be found at http://www.supremecourt.gov/opinions/10pdf/09-1454.pdf
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