Angenette Stephenson Assistant Attorney General

1. Adjudication Statutory Framework Angenette Stephenson Assistant Attorney General

2. Timing • Within 60 days (G.S. 7B-801(c)) • Continuances disfavored (G.S. 7B-803) • Good cause (needed evidence, best interest of child, etc.) • Discovery • Extraordinary circumstances • A parallel criminal matter, alone, is not sufficient

3. Purpose of the Adjudication The Court determines: • Whether the allegations are true • Whether the allegations fit within the statutory definition of abused, neglected or dependent juvenile The Court ensures protection of the rights of the child and the parents. (G.S. 7B-100(1)).

4. Effect of Adjudication on Child • Determine status of child • Basis for continued jurisdiction over child and family • Allows the government to intervene in Constitutionally protected parent-child relationship

5. Status of the Juvenile • “In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent.” In re Montgomery, 311 N.C. 101, 109 (1984); see also In re B.M., 183 N.C. App. 84, 87 (2007); In re A.S., 181 N.C. App. 706, 714 (2007).

6. Status of the Juvenile • Juvenile may be adjudicated: • Abused • Neglected, or • Dependent

7. Abused Juvenile(G.S. 7B-101(1)) • Any juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker: • Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means; • Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means • Uses or allows to be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;

8. Abused Juvenile, continued(G.S. 7B-101(1)) • Commits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile: [child sex crimes from Chapter 14]; • Creates or allows to b e created serious emotional damage to the juvenile; serious emotional damage is evidenced by a juvenile’s sever anxiety, depression, withdrawal, or aggressive behavior toward himself or others; or • Encourages, directs or approves of delinquent acts involving moral turpitude committed by the juvenile. • Commits or allows to be committed an offense [of human trafficking, involuntary servitude, or sexual servitude] against the child.

9. Neglected Juvenile(G.S. 7B-101(15)) • A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

10. Dependent Juvenile(G.S. 7B-101(9)) • A juvenile in need of assistance or placement because (i) the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or (ii) the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement.

11. Parties(G.S. 7B-401.1) • Petitioner = County DSS director • Parents - unless TPR, relinquishment, or convicted of an offense that resulted in conception of juvenile • 3. Guardian • 4. Custodian • 5. Caretaker - if the petition includes allegations, caretaker has assumed status & obligation of a parent, or Court orders • 6. The Juvenile

12. Parties(G.S. 7B-401.1) • Court may remove party when it finds: • The person does not have legal rights that may be affected by the action, and • The person’s continuation as a party is not necessary to meet the juvenile’s needs • No intervention allowed, except: • Another county DSS with an interest in the proceeding • Consolidation under G.S. 7B-200

13. Pre-Adjudication Hearing(G.S. 7B-800.1) • May be combined with pretrial hearing or nonsecure custody review hearing • Stipulations or consent order acceptable • Must address, among others: • Retention or release of provisional counsel • Identification of parties to proceeding • Paternity • Relatives • Summons, service of process, and notice requirements • Pretrial motions

14. Initial Venue (G.S. 7B-400) • May be commenced where a juvenile resides or is found • The absence of a juvenile from the juvenile’s home pursuant to a protection plan during CPS by DSS shall not change venue if it subsequently becomes necessary to file a petition • If Count A does a COI investigation for County B, County A may file a petition in either county • The Court has discretion to grant pre-adjudication venue change for good cause; petitioner remains the same

15. Impact of Adjudication on Parents • “Petersen presumption”* rebutted and best interest standard applied • Future proceedings – an adjudication of abuse or neglect may contribute to future adjudication or TPR • Collateral Estoppel • Collateral consequences such as stigma (In re A.K., 360 N.C. 449 (2006)). • Jurisdiction to enter dispositional orders * Peterson v. Rodgers, 337 N.C. 397 (1994)

16. Adjudication Hearings:Issues in Negotiations, Reaching Consents and Having Hearings Wendy C. Sotolongo Parent Representation Coordinator Indigent Defense Services of North Carolina

17. Negotiation • What is Negotiation? • Negotiation is a method of communication designed to reach an agreement when what you want conflicts with what someone else wants. • Why Negotiate an Adjudication? • To save court time • To find a solution that is acceptable to the parties, and leaves the parties feeling that they've won, in some way, at the conclusion (Principled Negotiation).

18. Negotiation • § 7B-801. Hearing. • (b1) Nothing in this Subchapter precludes the court in an abuse, neglect, or dependency proceeding from entering a consent adjudication order, disposition order, review order, or permanency planning order when each of the following apply: • (1)  All parties are present or represented by counsel, who is present and authorized to consent. • (2)   The juvenile is represented by counsel. • (3)   The court makes sufficient findings of fact.

19. Negotiation • § 7B-807.  Adjudication. • (a) If the court finds from the evidence, including stipulations by a party, that the allegations in the petition have been proven by clear and convincing evidence, the court shall so state. A record of specific stipulated adjudicatory facts shall be made by either reducing the facts to a writing, signed by each party stipulating to them and submitted to the court; or by reading the facts into the record, followed by an oral statement of agreement from each party stipulating to them.

20. Example 1 [DSS COUNSEL]: Judge on the adjudication issue, we’re proposing to stipulate to the facts as well as testimony and -- but the mother would neither admit nor deny but interpose no objection the Court making a finding of abuse and neglect. THE COURT: Counsel? [RESPONDENT’S COUNSEL]: Yes, sir. THE COURT: With that stipulation in, the Respondent neither admits nor denies, but is not opposed to finding of abuse and neglect.

21. What is an admission? • "The first of these to be noted is the judicial or solemn admission, which is a formal concession made by a party (usually through counsel) in the course of litigation for the purpose of withdrawing a particular fact from the realm of dispute . . . . Such an admission is not evidence, but rather removes the admitted fact from the field of evidence by formally conceding its existence. It is binding in every sense.* * *The other type of admission . . . is the evidential or extrajudicial admission. This consists of words or other conduct of a party, or of someone for whose conduct the party is in some manner deemed responsible, which is admissible in evidence against such party, but which may be rebutted, denied, or explained away and is in no sense conclusive."Woods v. Smith, 297 N.C. 363, 374 (1979)

22. What is a stipulation? • “[s]tipulations are judicial admissions are therefore binding in every sense, preventing the party who agreed to the stipulation from introducing evidence to dispute it and relieving the other party of the necessity of producing evidence to establish an admitted fact.” Thomas v. Poole, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981) • Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate. State v. Prevette, 39 N.C. App. 470, 472 (1979) • Even with stipulations, the findings of fact made by the court still have to support the court’s conclusions of law.

23. What is a consent? • An order in which all of the parties: • Agree on the findings of fact; and • Agree on the conclusions of law; and • Agree on the decree; and • The judge inquires as to their agreement or the parties’ agreement is reflected by signature on the order or memorandum order. The order must meet statutory requirements and be sanctioned by the court.

24. Example 2 • [Respondent's counsel]: [W]hat I have discussed with my client is, for the adjudicatory phase only, to stipulate the grounds exist for the adjudication only, not for the dispositional portion of the hearing, and he’s agreed to do that. . . . • THE COURT: What do we need to do as far as this adjudication—stipulation on the adjudication? What exactly are we stipulating to? • [Petitioner’s counsel]: I believe it’s that grounds have been met, specifically abandonment. • THE COURT: So do we need to stipulate as to any specific findings or just that— that there are findings— there are facts that support that stipulation? • . . . • [Respondent's counsel]: No. On disposition— I mean, on disposition, it's— there is no dispute of fact that he has not seen the children for over a six month period of time. At the dispositional phase, we'll be presenting evidence as to why that occurred, but there's no dispute that he has not——

25. Example 2, cont. • From the Order: “The parties stipulated that the Court could find by clear, cogent, and convincing evidence that [Respondent] willfully abandoned the juvenile[s] for at least six months immediately preceding the filing of the petition and that grounds exist to terminate [Respondent’s] parental rights under NCGS § 7B-1111(7).” • From the appellate decision: “In the relevant exchange, the trial court recognized it needed factual stipulations to support its conclusion that willful abandonment existed. Although Petitioner's counsel stipulated these facts existed, Respondent's counsel only stipulated there was “no dispute of fact that he has not seen the children for over a six month period of time.” Respondent's stipulation only eliminated Petitioner's need to prove Respondent abandoned the juveniles for at least six consecutive months immediately preceding the termination petitions. [cite omitted]. Respondent never stipulated his abandonment was willful.” In re A.K.D., 745 S.E.2d 7 (2013).

26. Example 3 • THE COURT: Well, does she understand that my order will basically find that she stipulated to the facts as stated in the petition, that I will find that there's clear and convincing evidence based on the stipulation to find these facts?RESPONDENT”S COUNSEL: Yes, Your Honor.. . .THE COURT: -- she's stipulating to all three of the allegations in the Petition - -RESPONDENT”S COUNSEL : That's correct.THE COURT: -- and stipulating that I can find these facts by clear and convincing evidence, and sustain the petitions of abuse, neglect and dependency as to the minor child.RESPONDENT”S COUNSEL : That's correct.. . .THE COURT: And she understands what a stipulation is, and she understands you - and you explained to her the legal effect of the stipulation.RESPONDENT”S COUNSEL : Yes, sir.THE COURT: And does she have any questions of the Court at this time about her stipulation?. . .RESPONDENT”S COUNSEL: Okay. She understands that, Judge.

27. Example 3, cont. • “Based on the record before us, it is evident that respondent-mother was present when her counsel offered the stipulations. Furthermore, the Court inquired into the full extent of the stipulation and whether respondent-mother understood the full legal ramifications of the stipulations. Counsel answered in the affirmative, and respondent-mother did not object or otherwise voice any disagreement. Thus, it appears that respondent-mother agreed to the stipulations entered into by her attorney. Therefore, this assignment of error is overruled.” • In the Matter of A.K., M.K., J.R., L.R., V.R., 671 S.E.2d 598 (2008) (unpublished)

28. Example 4 • DSS ATTORNEY: Through the adjudication process, we agreed that, at disposition, there would be a family services case plan, and we would initially work toward reunification.. • THE COURT: That's not what the order is going to say. I'm not going to order reunification. The plan is going to be adoption. • FATHER’S ATTORNEY: Well, can we strike what we've done, Your Honor? Your Honor, that was contingent upon–––– • THE COURT: No, ma‘am, because, ultimately, the decision is not the Department's, the decision is mine. • In re L.G.I. 742 S.E.2d 832 (2013).

29. Example 4, cont. • ….the trial court did not enter a consent order. See generally In re Thrift, 137 N.C. App. 559, 562, 528 S.E.2d 394, 396 (2000) (“A judgment by consent is the agreement of the parties, their decree, entered upon the record with the sanction of the court[.]” • . . . • At most, respondent-mother entered into a stipulation as to certain facts during the adjudication phase of the hearing. • . . . • Here, the trial court “read[] the facts into the record”… Respondent-mother then agreed to the facts under oath. The record does not reflect that respondent-mother’s stipulation was contingent upon any reciprocal agreement with DSS that reunification efforts would continue. • In re L.G.I. 742 S.E.2d 832 (2013)

30. Hearing • § 7B-802. Conduct of hearing. • The adjudicatory hearing shall be a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in a petition. In the adjudicatory hearing, the court shall protect the rights of the juvenile and the juvenile's parent to assure due process of law.

31. Hearing • § 7B-804. Rules of evidence. • Where the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply. • § 7B-805. Quantum of proof in adjudicatory hearing. • The allegations in a petition alleging that a juvenile is abused, neglected, or dependent shall be proved by clear and convincing evidence.

32. Adjudication • Bifurcated Hearings • Voluminous Records • Child Witnesses • Right against Self-Incrimination • Expert Witnesses • Orders

33. Adjudication-Bifurcated Hearings • § 7B-808.  Predisposition report. • (a)  The court shall proceed to the dispositional hearing…No predisposition report shall be submitted to or considered by the court prior to the completion of the adjudicatory hearing. • Despite this statute, case law is clear that it is not reversible error for the court to combine the adjudication and disposition hearing. If a party wants the hearings to be separate, that party must make a motion for a bifurcated hearing.

34. Adjudication-Bifurcated Hearings • [Father] contends the trial court received testimony of a dispositional nature during the adjudicatory phase of the proceedings… .While we conclude that it was improper for the trial court to consider such testimony during adjudication and to incorporate the testimony into its findings of fact, we conclude [father] has not demonstrated the trial court used the testimony for purposes other than determining an appropriate disposition. In re Mashburn, 162 N.C. App. 386; 591 S.E.2d 584 (2004) • [W]e find no requirement in the statutes that the stages be conducted at two separate hearings, even though the trial court is required to apply different evidentiary standards at each stage of the proceedings. [cite omitted]. Additionally, since these proceedings are heard by a judge, and not a jury, "it is presumed . . . that the judge, having knowledge of the law, is able to consider the evidence in light of the applicable legal standard and to determine whether [there is evidence of abuse or neglect] before proceeding to consider evidence relevant only to the dispositional stage." Id. Thus, the trial court did not err in consolidating the two hearings. In re O.W., 164 N.C. App. 699, 701 (2004)

35. Adjudication-Voluminous Records • Rule 1006. Summaries. • The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court. (1983, c. 701, s. 1.)

36. Adjudication-Child Witnesses • Rule 601. General rule of competency; disqualification of witness. • (a) General rule. - Every person is competent to be a witness except as otherwise provided in these rules. • (b) Disqualification of witness in general. - A person is disqualified to testify as a witness when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.

37. Adjudication-Child Witnesses • Potential harm to a child’s mental health has been held not to be a ground for finding a child incompetent and precluding the child from testifying but provides a basis for one or more accommodations during the child’s testimony. • Remote testimony • Excluding bystanders • Leading questions • Positioning on witness stand

38. Adjudication-Right Against Self-Incrimination • In a civil proceeding, the Fifth Amendment does not forbid the drawing of an adverse inference against a party who refuses to answer in reliance on the privilege. See In re Estate of Trogdon, 330 N.C. 143, 151–52 (1991) (finder of fact in a civil case may use a witness’s invocation of the Fifth Amendment privilege against self-incrimination to infer that • truthful testimony would have been unfavorable to the witness) • Kella W. Hatcher, Janet Mason, and John Rubin Abuse, Neglect, Dependency and Termination of Parental Rights Proceedings in North Carolina p 365. http://sogpubs.unc.edu/electronicversions/pdfs/andtpr.pdf.

39. Adjudication-Expert Witnesses • An indigent respondent is entitled to certain state assistance to assure her of her rights under the Fourteenth Amendment of the United States Constitution. These rights include that of effective assistance of counsel. In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996). Further, counsel may request expert assistance if there is a reasonable likelihood that it will materially assist the Respondent in the preparation of her case. In Re D.R., 172 N.C. App. 300, 616 S.E.2d 300 (2005). • AOC-G-309 (Rev. 09/13) - Application and Order for Defense Expert Witness Funding in Non-Capital Criminal and Non-Criminal Cases at the Trial Level

40. Orders • Rule 58. Entry of judgment. • Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5.  • "The trial court did not err by directing petitioner's attorney to draft the order for termination of parental rights, because: (1) nothing in N.C.G.S. 1A-1, Rule 58 or common practice precludes the trial court from directing the prevailing party to draft an order on its behalf; and (2) the trial court indicated that it had determined that sufficient grounds exist to terminate respondent's parental rights pursuant to each of the statutory grounds alleged in the petition, and it also designated specific findings of fact that it wanted included in the order." In re J.B., 172 NC App 1, 25, 616 S.E.2d 264, 279 (2005)

41. Orders • Rule 52. Findings by the court. • (a)        Findings. - • (1)        In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. • (2)        Findings of fact and conclusions of law are necessary on decisions of any motion or order ex mero motu only when requested by a party and as provided by Rule 41(b).

42. Orders • I.  Rule 3.5 Impartiality and Decorum of the Tribunal • (a) A lawyer shall not:….. • (3) communicate ex parte with a judge or other official except: • (A) in the course of official proceedings; (B) in writing, if a copy of the writing is furnished simultaneously to the opposing party; (C) orally, upon adequate notice to opposing party; or (D) as otherwise permitted by law;”

43. Orders • 97 Formal Ethics Opinion 5 January 16, 1998 http://www.ncbar.com/ethics/ethics.asp?page=6&keywords=ex+parte • “To comply with Rule 3.5, a lawyer must hand deliver a copy of the written communication to the opposing lawyer at the same time or prior to the time that the written communication is hand delivered to the judge or, if the written communication is mailed to the judge, the lawyer must put the written communication in the mail for delivery to opposing counsel at the same time or before it is placed in the mail for delivery to the judge.” • “Moreover, failure to give the opposing lawyer an opportunity to comment upon or object to a proposed order before it is submitted to the judge is unprofessional and may be prejudicial to the administration of justice. It is the more professional practice for a lawyer to provide the opposing counsel with a copy of a proposed order in advance of delivering the proposed order to the judge and thereby give the opposing counsel an adequate opportunity to comment upon or object to the proposed order. “ • “At a minimum, Rule 3.5(a)(3)(ii) requires a lawyer to furnish the opposing lawyer with a copy of the proposed order simultaneously with its delivery to the judge and, if the proposed order is furnished to the opposing counsel simultaneously, Rule 3.3(d) requires the lawyer to disclose to the judge in the ex parte communication that the opposing lawyer has received a copy of the proposed order but has not had an opportunity to present any comments or objections to the judge. Rule 3.3(d) provides that "in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." “

44. Disposition Statutory Framework Deana Fleming Associate Counsel Guardian ad Litem

45. Purpose(G.S. 7B-900) • Design an appropriate plan to meet the needs of the juvenile and to achieve objectives of juvenile court jurisdiction. • Initial approach should be working with the juvenile and family in their own home with appropriate community resources involved in care, supervision, and treatment to meet the juvenile’s needs. • Court should arrange for appropriate community-level services for the juvenile and family to strengthen the home situation.

46. Disposition Hearing Timeline(G.S. 7B-901) • The dispositional hearing shall take place immediately following the adjudicatory hearing and shall be concluded within 30 days of the conclusion of the adjudicatory hearing.

47. Disposition Hearing Procedures(G.S. 7B-901) • Disposition is an “informal” hearing. • Court may exclude public unless the juvenile wants it open. • Juvenile (through guardian ad litem) and juvenile’s parent, guardian, or custodian have a right to present evidence. • Court may take testimony or evidence from non-parties.

48. Disposition Evidence • Court may consider any evidence, including hearsay under G.S. 8C-1, Rule 801, that is relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition. Includes written reports. • Court may exclude cumulative evidence. In re Shue, 311 N.C. 586 (1984). • Court not restricted to consider information related to adjudication so long as the judge determines the evidence to be relevant, accurate and competently obtained. In re Bullabough, 89 N.C. App. 171 (1988). • Attorney statements are not evidence. In re D.L., 166 N.C. App. 574 (2004).

49. Paternity, Missing Parents & Relatives(G.S. 7B-901) • Court shall inquire as to the identity & location of missing parent and whether paternity is at issue. • Court shall include findings of efforts made to locate missing parent, service parent, and establish paternity. • Court may order specific efforts to determine identity & location of missing parents. • Court shall inquire about efforts to identify and notify relatives as potential resources for placement or support.

50. Dispositional Alternatives(G.S. 7B-903) • Dismiss or continue the case to allow parent, guardian, or custodian to take appropriate action. If the court finds the juvenile needs more adequate care or supervision or needs placement: • Require the juvenile to be supervised in the home by DSS. • Place the juvenile in the custody of a parent, relative, private placement agency, or other suitable person. • Place the juvenile in DSS custody.