Due Process Rights and Children: Fifty Years of In re Gault – Part Three, the Right to Notice

This post is the third in the series focused on In re Gault, the U.S. Supreme Court case which required that juveniles who were alleged to be delinquent should be extended the same due process rights applicable to adults in criminal proceedings.  The right to receive “notice” of a criminal charge or other alleged misconduct is considered to be one of the core requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although due process requirements vary depending on the circumstances, at a minimum, a person is entitled to notice and an opportunity to be heard before suffering a loss of life, liberty, or property by the government. In re D.B., 186 N.C. App. 556, 564 (2007). This basic protection was not afforded to juveniles prior to In re Gault, 387 U.S. 1 (1967), which extended due process rights to children. Why is notice so important? When must notice be given? How much notice is required? These questions and others are answered in this third post in a series about Gault’s role in protecting the rights of juveniles in delinquency proceedings over the past fifty years.

Why is notice important?

Receiving constitutionally sufficient notice of the charges is not just a perfunctory mandate. It serves three important functions: (1) to enable the juvenile to prepare a defense, (2) to allow the court to enter an adjudication of delinquency based on the alleged offense, and (3) to protect the juvenile from double jeopardy. In re S.R.S., 180 N.C. App. 151, 155-56 (2006).

The right to mount a defense against the charges, another tenet of Gault, is largely dependent on knowledge of the specific allegations. In some cases, the juvenile, parent, guardian, relatives, or friends may speculate or receive incomplete information regarding the allegations. Misinformation about an alleged act can cause confusion which may negatively impact the juvenile’s initial meeting with counsel. Once the juvenile receives specific notice of the facts upon which a petition is based, defense counsel may proceed with accurate information to explore potential defenses and determine the direction of the case.

How much notice is required?

You may recall that 15-year-old Gerald Gault was taken into police custody without notice to his parents after his neighbor accused him of making a prank phone call. Gerald’s parents discovered he was in custody after sending his older brother out to look for him that evening. When Gerald’s mother went to the detention facility, she was told that a hearing would be held in juvenile court the next day. On the day of the hearing, the arresting officer filed a “petition” that simply alleged Gerald was a minor under the age of 18 in need of the protection of the court because he was a “delinquent.” No factual basis for the charge was provided. Gerald’s parents were not served with the petition and did not see it until two months later at a habeas proceeding. The only written notice they ever received was a note on plain paper with the date of the next hearing, delivered by an officer three or four days after Gerald was initially taken into custody. Gault, 387 U.S. 5-6.

It’s no surprise that the Supreme Court found this notice to be inadequate. The Court held that to comply with constitutional due process requirements, notice must be given that would be deemed adequate in a civil or criminal case. That is, it “must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.” Id. at 33. The notice must also be in writing. Finally, because juvenile proceedings threaten not only the juvenile’s liberty interests but also a parent’s right to the custody of his or her child, the notice must be provided to both the juvenile and the juvenile’s parents. Id.

When must notice be given?

The constitutional requirements for notice established by Gault are codified in several Juvenile Code statutes which require notice to juveniles and their parents of important details at every stage of a juvenile proceeding. Some of the key notice provisions (and consequences for violating them) include:

  • Written Notice of the Allegations

A juvenile petition must assert facts that properly allege a criminal offense and identify the juvenile as the perpetrator “with sufficient precision clearly to apprise the juvenile of the conduct which is the subject of the allegation.” G.S. 7B-1802. The failure to properly allege each element of a criminal offense is a fatal defect which deprives the court of jurisdiction. In re M.S., 199 N.C. App. 260 (2009). A jurisdictional defect can be raised at any time, even after an adjudication of delinquency has already occurred. Id. Thus, an appellate court will vacate the adjudication if the defect is discovered on appeal. 

  • Service of the Summons and Petition

Notice of the facts invoking the court’s jurisdiction must be provided by service of the juvenile petition and summons on the juvenile and the juvenile’s parent or guardian at least five days prior to the scheduled hearing (unless the court shortens the time for service). G.S. 7B-1806. “The purpose of the juvenile summons is to provide notice to the juvenile and the juvenile’s parent or guardian of the juvenile’s rights, and of the date and time of the pending hearings.” In re S.C.B., 177 N.C. App. 811 (2006). The district court has no subject matter jurisdiction, if the petition and summons are not served. See In re Mitchell, 126 N.C. App. 432 (1997).

  • Notice of Rights When Making Admissions

Before accepting a juvenile’s admission of the allegations in a petition (similar to a guilty plea in criminal court), the judge is required to advise the juvenile of certain rights and determine whether the juvenile is making an informed decision with a full understanding of the consequences. G.S. 7B-2407. If a judge fails to make even one of the inquiries required by G.S. 7B-2407, it is reversible error. In re T.E.F., 359 N.C. 570 (2005).

  • Notice of Hearings

Unless notified in open court or the court orders otherwise, a juvenile and his or her parent(s) must receive five days prior written notice of the date and time of all scheduled hearings. G.S. 7B-1807. These notice requirements apply generally to all types of juvenile hearings, including custody review hearings, adjudication and disposition hearings, probation violation hearings, and post-release supervision hearings.

  • Notice of Probation Violations and/or Extensions

Juveniles must receive notice and have an opportunity to be heard before the court may revoke the juvenile’s probation or extend the probation term. G.S. 7B-2510(c) and (e). In general, the notice must inform the juvenile of the purpose of the hearing and allege probation violations with sufficient detail to notify the juvenile of the potential consequences. See In re D.S.B., __ N.C. App. __, 768 S.E.2d 922 (2015) (juvenile had actual notice that he was subject to a level 3 disposition for a violation of probation despite a clerical error in the motion for review). The five-day written notice requirement in G.S. 7B-1807 also applies.

  • Notice of Extended YDC Commitments

Juveniles may not be committed to the Division of Adult Correction and Juvenile Justice for placement in a youth development center longer than an adult could be imprisoned for the same offense, unless the Division determines they need further rehabilitation. G.S. 7B-2513(a). If the Division plans to extend a juvenile’s commitment beyond the maximum term, it must provide written notice to the juvenile and the juvenile’s parents 30 days prior to the juvenile’s scheduled release date. G.S. 7B-2515(a). This notice requirement protects the juvenile’s right to timely object to the extension and request a hearing. Thus, notice that fails to comply with the statutory requirements is reversible error which may result in the juvenile’s release. See In re J.L.H., 230 N.C. App. 214 (2013) (verbal notice 30 days prior to juvenile’s scheduled release was insufficient).

  • Notice of Post-Release Supervision Violations

Similar to probation revocation, juveniles must receive notice and have an opportunity to be heard before the court may revoke a juvenile’s post-release supervision. G.S. 7B-2516. Violations of post-release supervision can result in revocation which triggers recommitment of the juvenile to a YDC. As a result, the Juvenile Code requires written notice of the nature and content of the alleged violations and notice that the purpose of the hearing is to determine whether the juvenile has violated the terms of the post-release supervision such that revocation should be ordered. G.S. 7B-2516(a)(1). Although the statute requires “reasonable notice” to the juvenile, the five-day written notice requirement in G.S. 7B-1807 likely controls.

This list of notice requirements in the Juvenile Code, while incomplete, illustrates the importance of proper notice in protecting a juvenile’s right to a fair hearing – the fundamental meaning of due process. It also illustrates why charging errors in a juvenile petition matter so much (like alleging a larceny from Walmart instead of Walmart, Inc.) and why the court’s admission colloquy with a juvenile must be perfect. Our appellate courts have repeatedly said that there is a “greater duty to protect the rights of a respondent in a juvenile proceeding than in a criminal prosecution.”  T.E.F., 359 N.C. at 575. Complying with these notice requirements is one of the ways juvenile court participants fulfill this duty.

*In collaboration with the Professor LaToya Powell at the UNC School of Government, this post is the third in a series of posts related to In re Gault and its impact on due process rights for juveniles. The blog posts in this series will be posted to both the On the Civil Side Blog and the Juvenile Defender Blog. 

“North Carolina Court of Appeals Finds That Erroneous Completion of Juvenile Waiver of Rights Form Did Not Bar Admissibility of Confession” – By Bob Farb

From the School of Government’s “North Carolina Criminal Law,” blog, please read this informative blog by Professor Bob Farb. Professor Farb discusses the recent North Carolina Court of Appeals opinion, State v. Watson (October 18, 2016) addressing North Carolina statutory law concerning juvenile warnings and rights and the Watson ruling.

“North Carolina Court of Appeals Finds That Erroneous Completion of Juvenile Waiver of Rights Form Did Not Bar Admissibility of Confession.”

A Brief Word on the Harms of Juvenile Detention and Juvenile Probation Order Reform

Image result for juvenile detention center nc

What’s the harm in putting a child in a detention center?  While it might be argued that juvenile detention is in the best interest of the child prior to trial, statistical data proves otherwise.  The detrimental affects on youth and their families for even brief periods of containment in juvenile detention are detailed here.

Probation orders are also a common problem, and probation just happens to be the most common disposition given to juveniles adjudicated delinquent.  The rules of probation are difficult to understand and follow for most juveniles, and if not tailored appropriately to the child, the rules can be easily violated and lead to long-term repercussions on them.  In order for probation to yield the intended positive effects for youth, change is greatly needed.  You can learn more here.

Both articles above were recently published by the National Juvenile Defender Center.

Introduction to Marcus Thompson, Communications and Office Manager

marcus-t-pic-1

Salutations to everyone!  My name is Marcus Thompson and I am the new communications and office manager for the Office of the Juvenile Defender.

I hail from the humble little town of Plymouth, North Carolina.  Growing up as an avid reader and creative writer and desiring to do something with my talent that could impact others, I decided to pursue a career in print journalism.  In 2010, I earned my undergraduate degree in journalism and mass communications at North Carolina Agricultural and Technical State University (Aggie Pride!).  I also had a brief interest in learning entertainment law, but at the advice of my professors I decided not to pursue a law degree since I was not as passionate about practicing the law.

From high school up to now, I have worked with The Sanford Herald, The A&T Register, The Greensboro News & Record, the N.C. governor’s press office, and served one year as an AmeriCorps VISTA member working for the City of Raleigh, in addition to lending my writing and editing skills to smaller nonprofit organizations and online publishers.  As professional job opportunities in print media became scarcer, I began to look towards working in communications in the corporate business or nonprofit sectors before joining the Office of the Juvenile Defender as the communications and office manager.

Keeping with my passion to inspire, inform, and entertain others with my own unique view of the world, I also continue in my creative writing endeavors on the side.  I have written and created dozens of short comics, poems, and prose stories over the years, and been published several times in various anthologies, both online and in print.  I hope to continue developing my journalistic and technical writing abilities along with my creative writing skills as I progress in my communications career.

For anyone calling the office for Kim or Eric it will often be my voice that will grace you first, but for whatever reason you may need to contact OJD, I am here if needed and it is my pleasure to assist!

“The Nuts and Bolts of Initiating a Juvenile Delinquency Appeal” by guest bloggers Danielle Blass and David Andrews

If you represent a juvenile client, it is your duty to advise your client of the right to appeal an adjudication and disposition and of the strengths and weaknesses of a potential appeal. It is also your duty to file notice of appeal for the juvenile. See North Carolina Commission on Indigent Defense Services, Performance Guidelines for Appointed Counsel in Juvenile Delinquency Proceedings at the Trial Level, Guideline 11.3 (2007).  This duty mirrors trial counsel’s duty to advise clients in adult criminal cases.

But it is also important to remember that the rules governing notice of appeal are different in juvenile delinquency matters than in adult cases. In addition, there are steps that counsel can take to ensure that the appeal has some practical benefit to the client and that the appeal moves forward as quickly as possible. Below are 12 tips for successfully initiating an appeal for a juvenile client.

  1. Timing. Trial counsel only has 10 days to enter notice of appeal in a juvenile matter. Pursuant to C. Gen. Stat. § 7B–2602, whichgoverns the appeal procedure in juvenile delinquency cases, “[n]otice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order.” In contrast, trial counsel has 14 days to give notice of appeal in adult criminal cases.
  1. If Adjudication and Disposition Are Split Up, When Do I File Notice of Appeal? Pursuant to C. Gen. Stat. § 7B-2602, if no disposition is made within 60 days after entry of the adjudication order, written notice of appeal of the adjudication may be given within 70 days after entry of the order. This means that if your juvenile client is adjudicated delinquent, but no disposition is ordered, trial counsel has a 10 day window to file notice of appeal that begins 60 days after the entry of the adjudication order. Thus, in the event that the trial court orders adjudication but continues disposition, the best practice is to calculate and enter two dates into your firm’s calendaring system: (1) the date that is 60 days after adjudication, when your notice of appeal window opens if disposition is not yet ordered, and (2) the date that is 10 days after that, and which represents the end of the notice of appeal window.
  1. The Trial Court Said It One Day But Wrote It Another Day, So When Does The 10 Day Clock Start Ticking? If the trial court ordered an adjudication and disposition at the hearing but did not file a written order until later, trial counsel has from the date of the hearing until 10 days after the written adjudication and disposition orders were filed, to file notice of appeal. See In re M.A.P., No. COA16-279, slip op. at 5 (N.C. Ct. App. Sep. 20, 2016) (unpublished) (holding, based on State v. Oates, 366 N.C. 264 (2012), that the juvenile had from the date of dispositional hearing until ten days after the dispositional order was entered to file written notice of appeal). Thus, there may be times when trial counsel gives notice of appeal after the trial court’s oral orders but before the trial court files the corresponding written orders. Please note that, regardless of the window of time statutorily permitted, once your client decides to appeal, you must not delay filing notice of appeal.
  1. Write it Down, Serve It, and File It. Pursuant to C. Gen. Stat. § 7B–2602, trial counsel may either (1) give oral notice of appeal in open court at the time of the hearing; or (2) give written notice within 10 days after entry of the order. While oral notice is permitted, the best practice is to file written notice for two reasons. First, written notice of appeal provides a written record that the appeal was timely filed. Second, as a practical matter, if there is a defect in the notice of appeal, the appellate defender is able to spot it faster if the notice is written, because the clerk of court forwards a copy of the court file to the appellate defender. If oral notice of appeal is given, an error would not be discovered by appellate counsel until the court reporter transcribed the hearing and sent it to appellate counsel.
  1. What Am I Appealing? The North Carolina Court of Appeals has held that when a juvenile appeals a dispositional order, “he also effectively appeals the underlying adjudication order.” In re A.J. M.-B., 212 N.C. App. 586 (2011). However, confusingly, the Court has also found a lack of jurisdiction where the juvenile did not appeal both the adjudication order and the disposition order. See In re A.L., 166 N.C. App. 276 (2004)(holding that the court had no jurisdiction over an appeal where the juvenile appealed the adjudication but not the disposition); see also In re M.B.B., No. COA06-1155, slip op. at 5 (N.C. Ct. App. May 1, 2007)(holding that where the trial court adjudicated the juvenile delinquent for simple affray and for simple assault and one disposition was subsequently ordered for both, the appellate court lacked jurisdiction over the simply affray adjudication because notice of appeal referenced only the simple assault adjudication and the joint disposition but did not mention the simple affray adjudication). Thus out of an abundance of caution, trial counsel should include each adjudication order and each dispositional order in the notice of appeal. (The only exception would be if the appeal is made within the 60-70 day window described in C. Gen. Stat. § 7B–2602because no disposition was ordered). A sample notice of appeal is available on the Juvenile Defender website.
  1. Get Your Client Out of Detention. There are two ways to seek release of your client while the appeal is pending.
  1. First, trial counsel should request release pursuant to C. Gen. Stat. § 7B-2605. The juvenile must be released under N.C. Gen. Stat. § 7B-2605 unless the court enters a written order providing “compelling reasons” that custody or placement would be “in the best interests of the juvenile or the State.” See In re J.J. Jr., 216 N.C. App. 366, 376 (2011) (holding that the juvenile “should have been released” after giving notice of appeal because the trial court “failed to state any compelling reasons in writing why the juvenile should not be released pending his appeal”).  The best practice is to include the written request for release from custody in the written notice of appeal.
  1. Second, although not addressed in the Juvenile Code, trial counsel could file a motion for stay of disposition. Using this avenue, trial counsel would request that any dispositional alternatives involving confinement be stayed during the pendency of the appeal pursuant to Rule 8 of the North Carolina Rules of Appellate Procedure.
  1. These two avenues could apply for any type of confinement or placement outside of the home, including intermittent confinement under C. Gen. Stat. § 7B-2606(12), confinement at a juvenile detention facility under N.C. Gen. Stat. § 7B-2606(20), and confinement in a Youth Development Center under N.C. Gen. Stat. § 7B-2606(24).
  1. A sample notice of appeal with a request for release and a sample stay motion are both available on the Office of the Juvenile Defender website.
  1. Staying Non-Confinement Dispositions Pending Appeal. Trial counsel could also ask that any dispositional alternatives, such as probation, be stayed under Rule 8 of the North Carolina Rules of Appellate Procedure during the pendency of the appeal. Trial counsel must argue that there are potentially meritorious issues that would warrant relief on direct appeal and that failure to grant a stay would deprive the juvenile of the practical benefits of direct appeal. Meares v. Town of Beaufort, 193 N.C. App. 49, 63-64, 667 S.E.2d 244, 254 (2008); Abbott v. Highlands, 52 N.C. App. 69, 277 S.E.2d 820 (1981). For example, trial counsel may argue that the trial court committed reversible error by failing to issue written findings of fact regarding each of the factors outlined in N.C. Gen. Stat. § 7B-2501(c), and subsequently failed to select “the most appropriate disposition” for the juvenile “that is designed to protect the public and to meet the needs and best interests of the juvenile.” N.C. Gen. Stat. § 7B-2501(c); In re V.M., 211 N.C. App. 389, 392, 712 S.E.2d 213, 215 (2011). Further, if a dispositional order included 12 months of probation, the probationary term would likely run before relief could be obtained via the appellate process. See State v. Corkum, 224 N.C. App. 129, 132, 735 S.E.2d 420, 422-23 (2012) (“[t]his nine-month duration is too short for an appeal to be decided”). Please note that a dispositional stay may be full or partial. The stay motion may also practically serve as a rare opportunity to explain to a trial judge what trial counsel believes to be unjust or incorrect about a court order after it is issued and could thus double as an educational exercise for all involved.
  1. Don’t Reinvent the Wheel! The juvenile defender has online templates for you to use! Use them. This will help to ensure that the notice of appeal is proper.
  1. Appellate Entries. Immediately after giving notice of appeal, the best practice is to complete the Appellate Entries form and provide it to the trial court to expedite the appointment of appellate counsel. To avoid delays in processing the appellate entries, counsel should identify a court reporter on the appellate entries before submitting the appellate entries to the clerk.  Counsel should ask the clerk if he or she knows which court reporter will be assigned to the case.  If the clerk does not know which court reporter to assign to the case, counsel should contactDavid Jester, Court Reporting Manager for the Administrative Office of the Courts. David Jester can be reached at (919) 831-5974. After counsel has submitted the appellate entries to the clerk, trial counsel should follow-up with the clerk to ensure that the appellate entries is signed by the district court judge and that the clerk sends copies of the appellate entries and the court file to the Office of the Appellate Defender in a timely manner.
  1. Transfer Orders. Pursuant to C. Gen. Stat. § 7B-2603(d), there are two things that need to happen before a juvenile can appeal a transfer order (an order transferring jurisdiction of the district court to the superior court) to the Court of Appeals. First, trial counsel MUST appeal the order to superior court before the order can be appealed to the Court of Appeals. G.S. 7B-2603(d); State v. Wilson, 151 N.C. App. 219, 222 (2002). Second, the juvenile MUST have been convicted after a trial. Id.
  1. Don’t Take the Clerk’s Word For It. It is trial counsel’s responsibility to obtain and review the court file to check for written adjudication and dispositional orders. If the clerk resists providing the court file, trial counsel must insist on obtaining and reviewing it. The written adjudication and dispositional orders may determine when the 10 day notice of appeal window runs. Trial counsel must make his/her own determination of the notice of appeal timeline and cannot rely on the clerk for determining that window.
  1. If You Aren’t Sure, Ask! Eric Zogry and Kim Howes at the Office of the Juvenile Defender, and David Andrews, at the Office of the Appellate Defender, are great resources. They are available to help you with any questions you may have regarding entry of notice of appeal in juvenile matters!

 

David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender. He handles indigent appeals in criminal, juvenile delinquency, and involuntary commitment cases in the North Carolina Court of Appeals and the Supreme Court of North Carolina.  He can be reached by email at David.W.Andrews@nccourts.org.

Danielle Blass is the principal attorney at Blass Law, PLLC, where her focus is on criminal appellate defense in North Carolina state courts. Ms. Blass’s professional experience includes representing hundreds of clients on criminal charges with an emphasis on client dedication, zealous advocacy, and rigorous preparation. Prior to opening Blass Law, PLLC, she worked in education law for UNC’s Office of University Counsel, in general practice as an associate with DeWitt Law, PLLC, and in criminal trial and appellate defense as a partner with Gerding Blass, PLLC. She earned her B.A. from Duke University and a J.D. from UNC School of Law.

 

 

 

 

 

 

 

“The Magistrate’s Role in Filing Juvenile Delinquency and Undisciplined Petitions” by Professor LaToya Powell

From the “On the Civil Side” blog, please read this insightful post written by Professor LaToya Powell.  Professor Powell breaks down what authority magistrates have in juvenile cases and filing juvenile petitions and custody orders after-hours.

The Magistrate’s Role in Filing Juvenile Delinquency and Undisciplined Petitions