Statewide Juvenile Defender Call, December 7th, at 1 pm

Our next statewide juvenile defender call will be Wednesday, December 7th at 1:00 PM. Call in number is 919-890-2204. Topics will include an update on the status of the Raise the Age proposal (hint – Sheriff’s Association is supporting!),an introduction to Marcus Thompson, our new Communication and Office Manager,and upcoming communications survey, a discussion about probation and what you can do for your client, and any other issues you’d like to discuss. Looking forward to our discussion!

New Resources for Miller and Transfer Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

However, for the juvenile defense bar, the handout’s usefulness is not limited to cases involving litigation of a life without parole sentence for a juvenile who is 16 or 17 years old or a 13-, 14-, or 15-year-old who has been transferred to superior court on a first degree murder charge. Many juvenile defense attorneys have to defend their 13-,14-, and 15-year-old clients from discretionary transfer to the adult system if they have been charged with a serious felony and the district attorney requests transfer. The handout provides arguments and resources that can be used to argue against transfer during the discretionary transfer hearing. Counsel should follow the advice in sections III, IV, and VI in the handout to present a comprehensive view of the juvenile to the court and argue that the juvenile should remain in juvenile court in order to receive treatment and rehabilitation that is unavailable in superior court.

If you are appointed to handle a case involving a new first-degree murder charge against a juvenile client or your client may be subjected to discretionary transfer, please be sure to review the handout, which is available in the “Transfer Hearings” section on the Office of the Juvenile Defender website and the “Litigation Guides” section on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

Disability Rights Scores a Win for NC’s Most Vulnerable Children

Many of our clients have complex behavioral health needs and we have all experienced the sad reality that there have been absolutely no appropriate services available for some of them. NC Child just posted information about a settlement that was reached  by Disability Rights NC and the NC Department of Health and Human Services in October. Hopefully our clients will soon have access to better services and supports that will keep them out of institutions and help them live at home.

Read more here: Disability Rights Scores a Win for NC’s Most Vulnerable Children

“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.”

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.

_______________________________

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.

___________________

[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.