Guest Blog – Drew Kukorowski Talks JTIP

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I recently attended the Juvenile Training Immersion Program (JTIP) co-sponsored by the National Juvenile Defender Center and Georgetown Law’s Juvenile Justice Clinic. This is a week-long trial skills program specifically designed for frontline juvenile defenders. Roughly, think bootcamp for juvenile defenders.

The program runs from Sunday evening through Saturday morning, and covers everything from competency evaluations to post-disposition advocacy. One of the best parts of the program is its lecture/breakout structure: sessions typically involved a lecture about some particular aspect of a juvenile case (e.g., Motions to Suppress Identifications, Disposition Advocacy, Probation Violations) and are followed by small-group breakout sessions. The breakout sessions give you a chance to practice implementing points from the lecture, and to get instant feedback from your instructors and fellow defenders.

The trial advocacy training is top-notch, but one of the best parts of the program was interacting with frontline defenders from around the country. I was amazed at how different each state’s juvenile delinquency system operates, and yet all of us face similar problems: the over-reliance on putting children, particularly children of color, in cages; the sacrifice of and often outright disrespect for constitutional and statutory rights in the name of efficiency and ‘getting services’; and reluctance and distaste by juvenile court actors to incorporate recent Supreme Court jurisprudence into everyday practice. We were all able to share different strategies and tactics for overcoming these injustices. I returned to North Carolina with new ideas about how I can better represent my clients in juvenile court.

Given its length, the program is exhausting, but it’s also exhilarating. You’re with fellow defenders of youth who all want to improve outcomes for their clients, and who are willing to explore innovative ways to do that. It was without question the most informative, innovative, and practical legal training I’ve ever attended. I’d encourage any defender in North Carolina to apply for next summer. Please don’t hesitate to contact me (drew@cfcrights.org) if you’re interested or have questions.

Drew Kukorowski is a public defender for young people in Charlotte. In 2012, he began working as a Staff Attorney on the Children’s Defense Team at the Council for Children’s Rights. He previously worked at the Prison Policy Initiative and Advocates for Children’s Services of Legal Aid of North Carolina.

 

Interim Report and Comment Period – Chief Justice’s Commission

The Chief Justice’s Commission on the Administration of Law and Justice has been meeting for nearly a year.  The Criminal Investigation and Adjudication Committee has been discussing, among other issues, the age of juvenile jurisdiction.  To read the Committee’s Interim Report, including recommendations regarding the age of juvenile jurisdiction, click here.

To make comments on the Interim Report, please click here.

Mental Health Providers & Privilege: What You Need to Know (Part 3)

Our last post highlighted the laws and privileges between mental health professionals and their patients. The privilege is unavailable to exclude evidence relating to child abuse, neglect and dependency. However, this exclusion raises two issues: (1) whether sexual contact between minors falls within the meaning of abuse, neglect, or dependency under § 7B-301, and if so, (2) whether information not related to the abuse, neglect or dependency is admissible.

There is little appellate case law that addresses sexual contact between minors, so it is necessary to examine the statute. Abuse occurs when enumerated sexual crimes such as rape, statutory rape, forcible sexual offense, and incest are committed or allowed by a parent, guardian, or caretaker. Specifically, a caretaker is defined as “any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a juvenile in a residential setting.” This can include a babysitter or another adult charged with care. Neither the definition of caretaker nor responsible individual makes specific mention of juveniles under the age of eighteen. Therefore, it is not clear that the statutory definition intends to encompass sexual acts between minors. Only sexual contact committed by an adult in a supervisory role would qualify as abuse.

However, the statute does not limit the definition of abuse and neglect to physical sexual acts. In fact, the statute includes broader descriptions of conduct equaling abuse or neglect. For example, a child is neglected if the child lives in an environment injurious to the child’s welfare. The courts determine whether such an injurious environment exists by clear and convincing evidence.

An argument should be made that information contained in the sex offender specific evaluation is part of treatment, and thus, privileged. There is a strong interest in promoting confidence and trust between psychotherapists and their patients. Jaffee v. Redmond, 518 U.S. 1, 10 (1996). Relevant information offered to a counselor, or psychotherapist, as part of treatment or services should be privileged.

However, the reporting statute for abuse and neglect creates the duty to report when an individual has “cause to suspect” abuse or neglect. “Cause to suspect” is not defined and false reporting is not addressed in the statutes. Because of this language, most mental health practitioners report potential abuse and leave the factual determinations for DSS or law enforcement.

Furthermore, judges may easily override the privilege if they determine disclosure is necessary to a proper administration of justice. Most cases allow damaging evidence to be admissible when relevant. However, the public policy benefit, combined with the U.S. Supreme Court’s caution of using this information during sentencing, may persuade a judge at adjudication or disposition to exclude certain portions of the communication.

The evidence pertaining to the abuse or neglect of a child is not privileged. However, attorneys should file a motion in limine to exclude all other communications as privileged under § 8.53.3. At the adjudication hearing, attorneys should object to the disclosure of information under § 8-53.3. The patient (or respondent) bears the burden of establishing the existence of the privilege, and failure to object constitutes waiver. Mims v. Wright, 157 N.C. App. 339, 342 (2003). The judge may determine disclosure is proper for the administration of justice. Should the judge do so, the attorney must renew the objection to preserve the issue on appeal.

Also, the attorney should determine whether the counselor advised the juvenile of his confidentiality rights and that certain admissions must be disclosed. Failure to properly advise a juvenile client of confidentiality weighs against the therapist. A situation where a court ordered counselor or therapist completely failed to advise the juvenile of this information could be grounds for a motion to suppress under the Fifth Amendment.

Mental health professionals are provided with guidelines concerning confidentiality, its limits, and roles when providing services. By law, counselors are required to notify their patients of mandatory disclosures. Failing to do so triggers a professional and ethical violation for both counselors and psychologists. Although waiver and disclosure are common, the statute coupled with physician and counselor ethics favors nondisclosure. Therefore, attorneys should generally object to sharing information between their clients and mental health professionals with the court.

Finally, unlike many jurisdictions, North Carolina does not follow a duty to warn third parties of harm. As a result, only extreme circumstances or abuse and neglect should justify a mental health professional disclosing information shared by the patient to authorities or potential victims.

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This is the final post in our series of three posts discussing mental health evaluations, privilege, and juvenile clients. Thank you again to our summer legal intern, Evan Lee for all his great work on this topic!

Mental Health Providers and Privilege: What you need to know.

This is the second post in our series of three posts discussing mental health evaluations, privilege, and juvenile clients. Thank you to our summer legal intern, Evan Lee for all his great work on this topic!

Like the attorney client privilege or priest-penitent privilege, a privilege exists for communication between patients and mental health professionals. In fact, all jurisdictions within the Fourth Circuit, including North Carolina, contain some statutory form of this privilege. However, the law governing privileged information between patients and a counselor or psychologist is multilayered. It is governed by the Federal Rules of Evidence, the North Carolina Rules of Evidence, state statutory law, state administrative law, and to a certain extent, professional codes of ethics.

The United States Supreme Court determined that the Federal Rules of Evidence could not compel disclosure of confidential communications between a psychotherapist and her client during the course of diagnosis. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). Protecting such communications is rooted “in a public good which overrides the quest for relevant evidence.” Kinder v. White, 609 Fed. Appx. 126, 131 (4th Cir. 2015) (quoting United States v. Glass, 133 F.3d 1356, 1358 (10th Cir. 1998)). In Jaffee, the Supreme Court determined this privilege existed as a general privilege in Rule 501. The North Carolina Rules of Evidence provide that privileges are determined in accordance with the laws of this state. This includes specific privileges between patients and mental health professionals.

North Carolina grants all patients treated by mental health professionals a right to confidentiality. N.C.G.S. § 122C-52. This right prevents the disclosure of information acquired in attending or treating a patient.  Exceptions exist for patient consent, information regarding involuntary commitment proceedings, competency evaluations, information regarding the abuse and neglect of a child or adult, information relevant to coordinating treatment, and other court compelled disclosures. N.C.G.S. §§ 122C-53-55. Mental health professionals also have a duty to report child abuse, neglect, dependency or death. N.C.G.S. § 7B-301. Discretionary disclosure exists when the professional believes there is imminent danger to the client or another individual or there is a likelihood of the commission of a felony or violent misdemeanor. N.C.G.S. § 122C-55(d). However, “North Carolina does not recognize a psychiatrist’s duty to warn third persons.” Gregory v. Kilbride, 150 N.C. App. 601 (2002).

Ethically, psychologists and counselors must protect confidential information and therapists must explain confidentiality and its limitations to all patients. Specific guidelines also exist for forensic practitioners who present psycholegal issues to a judge or jury. Therefore, both the juvenile and the parent need informed consent and an understanding of confidentiality before any evaluation or treatment prior to adjudication.

North Carolina also provides a statutory privilege for communication made between a psychologist and a patient. N.C.G.S. § 8-53.3[1]. This privilege covers information acquired in the practice of psychology and includes that information necessary to enable the psychologist to practice psychology. State v. East, 345 N.C. 535, 544 (1997).

However, this privilege is not absolute. Capps v. Lynch, 253 N.C. 18, 22 (1960). The patient may expressly or impliedly waive his physician-patient privilege. Cates v. Wilson, 321 N.C. 1, 14 (1987). A district or superior court judge may also compel disclosure when necessary for a proper administration of justice. Thus, trial court judges have wide discretion in determining when information is not privileged and when disclosure must be compelled. State v. Efird, 309 N.C. 802 (1983). Further, the privilege does not apply to information regarding the abuse or neglect of a child. The next post will examine what types of conduct must be reported under N.C.G.S. § 7B-301, as well as arguments and strategies for excluding information shared between a juvenile and a mental health.

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[1] North Carolina also has privileges for school counselors, N.C. Gen. Stat. § 8-53.4, licensed social workers, N.C. Gen. Stat. § 8-53.7, and licensed counselors, N.C. Gen. Stat. § 8-53.8.