OJD Week in Review: Jan. 21 – 25

Hello again and welcome to another Friday!  This week we’ve got a new tip, a new training announcement, some news from around the juvenile defense community that may be of interest, and some deadline reminders.

We also released our 2018 Year in Review earlier this week.  Please take a moment to check it out here if you haven’t had a chance to read about some of our accomplishments from this past year and plans going forward into 2019.

Tip of the Week – Immigration Consultations

Did you know that IDS has made immigration consultants available to all defenders who have been appointed indigent clients?  That means all of your juvenile clients!  This may be especially helpful to determine if your client may be eligible for some type of immigration relief since s/he is a juvenile.  Simply go to the IDS website to access the form here.  You may want to print out the printable version and put it in your case file to fill out when you meet your client and then upload the information when you get back to the office.

From Around the Community

On teh Civil SideFrom the On the Civil Side blog, Jacqui Greene has posted a new piece titled “Mental Health Evaluations Required Prior to Delinquency Dispositions“.  In this blog post, Greene examines In re E.M., the recent case from the Court of Appeals which applies an old statute that requires district courts to refer juveniles who have been adjudicated delinquent prior to disposition to the area mental health, developmental disabilities, and substance abuse services director for interdisciplinary evaluation if any evidence of mental illness is presented.  Greene explores how much evidence of mental health issues is needed, how to locate the local management entity who would need to provide the evaluation, what happens if a juvenile has already received a mental health evaluation, and the implications of the Court’s decision.  You can read the full post here.

On Feb. 11 at 12:30 p.m., Duke Law School Professor Brandon L. Garrett and the Duke Criminal Law Society will be presenting and releasing their newest study, “Juvenile Life Without Parole in North Carolina”.  Garrett was awarded a grant from the Charles Koch Foundation to study evidence to inform criminal justice policy.  Through his research, Garrett prepared a report and will be sharing his findings with all attorneys working on juvenile cases at this event.  For further information, please direct questions to Callie Thomas.

Job Opportunities

The deadline for applications for the Office of Indigent Defense Services (IDS)‘ Regional Defender position is Sunday, Jan. 27.  The ideal candidate will have the ability to provide oversight to professionals, have knowledge of General Statutes, case law and responsibilities of contractors, and have skills in representing indigent defendants, problem solving, and relationship building.   IDS prefers applicants with some teaching/supervisory experience and a minimum of five years of experience with criminal defense work representing indigent clients.  You can apply and see more on this opportunity here.

On Dec. 1, Indigent Defense Services issued a Request for Proposals (RFP) in Caswell, Person, Alamance, Orange, and Chatham counties.  The current contracts for adult noncapital criminal cases at the trial level and per session court cases in those districts will expire on May 31 and renew on June 1.  The RFP (RFP #16-0002R) seeks services for adult noncapital criminal cases at the trial level, juvenile delinquency, abuse/neglect/dependency and termination of parental rights, and treatment courts.  Please note that the RFP will not seek offers for potentially capital cases at the trial level, direct appeals or post-conviction cases.  Also, the juvenile delinquency RFP will only include Caswell, Alamance, and Person counties.  The deadline for electronic offers is Feb. 15.  To access the RFP, please check here.

Training

The Office of the Juvenile Defender will be hosting a Juvenile Court Basics CLE on Feb. 27 from 1 to 4 p.m. at the Cumberland County Courthouse.  Assistant Juvenile Defender Kim Howes will be discussing the role of counsel, how to communicate with juvenile clients, dispositions, capacity, appeals, and so much more.  Questions and concerns are welcome.  Three general CLE credit hours are currently pending for this training.   Please contact Marcus Thompson by email or call 919-890-1650 if you have questions.

Save the date!  The 2019 Regional Training for Indigent Defense: Special Issues in Complex Felony Cases will be held on March 21 at the East Carolina Heart Institute at East Carolina University in Greenville, N.C.  The training will focus on topics relevant to criminal law practitioners and is open to IDS contract attorneys and privately assigned counsel.  Participants will receive three general CLE credit hours.  Registration should open later this month.

training toy story

That wraps it up for now.  Check out OJD’s Twitter and Facebook for posts throughout the week and we will share more here on next Friday.

OJD Week in Review: Oct. 1 – 5

Happy First Friday!  This week, as far as news, we’ve got one new job opportunity added.

We also want to mention that we are still updating our Case Summaries list.  Most recently, we’ve added the published delinquency opinion for In re J.B., which deals with self-incrimination.  We do want to apologize for any issues with the links to the PDF versions of the opinions.  The addresses still work when copied into a browser, but we are aware that the hyperlink within the document gives an error message.  We apologize for that inconvenience, and we are still seeking solutions around it.

Job Opportunities

The Council for Children’s Rights is seeking to hire a full-time juvenile defense attorney for its Children’s Defense Team.  The juvenile defense attorney will primarily represent children in the Mecklenburg County Juvenile Court.  To apply, please submit a resume and cover letter here by Oct. 16.

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The Lousiana Center for Children’s Rights (LCCR) is currently accepting applications for a Miller staff attorney, a regional mitigation specialist, and a Miller mitigation supervisor.

Training

On Oct. 18, from 3 p.m. to 5 p.m., the North Carolina Advocates for Justice Juvenile Defense Section in collaboration with the Office of the Juvenile Defender will be hosting a CLE in Asheville, N.C. at the Lexington Brewery.  This CLE will have presentations from IDS Regional Defender Valerie Pearce, discussing the ethical obligations to representing youth following the full implementation of Raise the Age, and Assistant Juvenile Defender Kim Howes, discussing strategies for utilizing resources and advocating for the best results for clients to set them up for success.  One CLE credit hour in ethics and one general  CLE credit hour for this course are currently pending with the Bar.  A sidebar social will also be held at the same location at 5:30 p.m.  You do not need to be a member of NCAJ to attend this CLE.  Everyone can attend for free and pay their CLE credit fees directly to the Bar.  To RSVP, please contact Valerie Pearce by email here or call 919-667-3369.

On Nov. 16, the UNC School of Government will be hosting a Back to School CLE from 8:45 a.m. to 5 p.m.  The training offers 6.25 hours of CLE credit, including an hour of ethics and an optional hour of substance abuse credit.  Topics will include civil and criminal case law and legislative updates, the opioid epidemic, and a review and preview of the U.S. Supreme Court.  Registration will be $300 and the deadline to register will be Oct. 31.  Lunch will be provided.  To register please visit the UNC SOG site here.

That is all there is for this week.  Thanks for reading and have a great weekend!

OJD Week in Review: Jan. 15-19

Good afternoon N.C. Juvenile Defender Community.  It has been a rather eventful week, depending on where you are, and we hope everyone is still warm and safe.  This week we would like recap a few important things.

ICYMI

Earlier in the week, Assistant Appellate Defender David Andrews offered a great breakdown of the updated North Carolina Juvenile Defender manual, the first new edition since 2008.  The new manual offers defenders instruction based on changes to the Juvenile Code over the past decade, including sections on procedures for suppression motions and Raise the Age legislation, along with expanded sections on other topics covered in the original.  Andrews co-wrote the new manual along with John Rubin, Albert Coates Professor of Public Law and Government at the UNC School of Government.  Please take a moment to read David’s article here and access the new manual on the School of Government’s website.

RTA

Also, earlier in the week our office released our “2017 Year in Review”, highlighting some of the juvenile defense community’s biggest achievements in the past year, including the passage of Raise the Age and commemorating the 50th anniversary of In re Gault.  In our post we also provide our plan going forward to evaluate contracts and provide training in response to the increase in juvenile jurisdiction.  To read our brief on some of our successes and plans from 2017, please check out our article here.

Quick Reminders

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) will be supporting National Drug and Alcohol Facts week, sponsored by the National Institute on Drug Abuse and National Institute on Alcohol Abuse and Alcoholism.  From Jan. 22-28, these organizations will be supporting community events nationwide and beyond that bring people together, from adolescents to experts, to discuss alcohol and drug abuse.  The National Institute on Drug Abuse will be providing free booklets about how to deal with drug abuse, in addition to other educational resources.

OJJDP will also be accepting nominations for their 2018 National Missing Children’s Day awards until Jan. 24.  They are seeking nominees for their Missing Children’s Citizen Award and Missing Children’s Child Protection Award.  These awards are meant to recognize private individuals who helped to recover a missing/abducted child and professionals, such as law enforcement officers and child protective service agents, who have worked to protect children from abuse and victimization.  For further details and to submit your nominations, please check here.

That will be all for now, but warmer weather, better days, and more news are ahead!  Don’t forget to check back early and often and follow us on Facebook and Twitter as well.

 

“Introducing the 2017 Edition of the N.C. Juvenile Defender Manual” by Guest Blogger David Andrews

David Andrews Profile Picture - Small

Late last year, John Rubin of the UNC School of Government and I published the 2017 edition of the North Carolina Juvenile Defender Manual. This edition was three years in the making.  In addition, its publication coincided with a year-long initiative to commemorate the 50th anniversary of In re Gault, 387 U.S. 1 (1967), the Supreme Court decision that transformed the protections for juveniles in delinquency cases.

The new edition of the manual builds on the structure of the original 2008 edition and contains discussions of recent changes to the Juvenile Code, and analysis of case law from the past ten years. Here are some of the major changes to the manual:

  1. Appeals (Chapter 16): I handle juvenile delinquency appeals and so, naturally, one part of the manual that saw some significant changes was the chapter devoted to appeals. The primary change to this chapter involves a new section on transmitting appeals to the Appellate Defender, which is a process that is sometimes overlooked by attorneys, but can result in complications and delays. We also added new sections on appeals by the State and appeals involving the denial of a motion to suppress.
  1. Suppression Motions (Chapter 11): Prior to 2015, there were no procedures in the Juvenile Code for suppression motions. However, in 2015, the General Assembly enacted a law that provided specific procedures for suppression motions filed in juvenile delinquency cases. The new edition of the manual describes those procedures, as well as recent opinions on suppression issues, such as D.B. v. North Carolina, 564 U.S. 261 (2011), and State v. Saldierna, 369 N.C. 401 (2016).
  1. Registration of juveniles adjudicated delinquent for sex crimes (Chapter 13): The new edition of manual includes a lengthier discussion of state and federal registration requirements for juveniles adjudicated delinquent for certain sex crimes.
  1. Modifying dispositional orders (Chapter 13): The new edition of the manual provides an expanded discussion of motions in the cause under N.C. Gen. Stat. § 7B-2600 and a discussion of two recent cases that shed light on the criteria for modifying dispositional orders.
  1. The juvenile’s right to access records (Chapter 10): In the chapter on discovery, John and I included a section on the juvenile’s right to access the clerk’s records for cases involving the abuse, neglect, or dependency of the juvenile; DSS records of cases in which the juvenile is under placement by a court or has been placed under protective custody by DSS; and records concerning the juvenile that are maintained by law enforcement and the Division of Adult Correction and Juvenile Justice.
  1. Raise the age legislation (Chapter 19): As John and I neared completion of the manual, the General Assembly enacted legislation to raise the age of jurisdiction for juvenile delinquency cases from 15- to 17-years-old. John and I added a short chapter that discusses portions of the legislation that went into effect in December 2017. We also provided a link to a primer by LaToya Powell on the changes that take effect in December 2019.

We hope that juvenile defenders around the state find the new edition of the manual useful. If you have questions or comments about the manual, please send them to David Andrews at david.w.andrews@nccourts.org or John Rubin at rubin@sog.unc.edu.

 

David W. Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.

“In the Matter of T.K.: Does a Student’s Use of Profanity in the Hallway Constitute Disorderly Conduct at School” by Professor LaToya Powell

Yesterday, Professor LaToya Powell  posted a new entry on the UNC School of Government’s “On the Civil Side” blog further detailing In the Matter of T.K. and what elements are needed to determine disorderly conduct.  Professor Powell evaluates how disorderly conduct is defined by the law and how previous case law relates to the situation described in T.K.  Please take a moment to read this informative piece.

Two weeks ago we also updated our “Case Summaries” section with the latest opinion from the Court of Appeals, summarizing In re T.K.  Please find this information on our site here.

disoderly dunham

Due Process Rights and Children: Fifty Years of In re Gault Part Five, the Privilege Against Self-Incrimination

Juvenile defenders, the court system, the governor, and other advocates recently celebrated a historic moment in juvenile justice. Monday was the 50th Anniversary of the In re Gault decision, which guaranteed juveniles the right to due process in delinquency proceedings. In honor of the event, this multiple part series on due process has explored the history of Gault and how it transformed juvenile court by ensuring that juveniles have the right to notice, the right to counsel, and the right to confrontation and cross-examination. This final post discusses the Fifth Amendment privilege against self-incrimination and the protection it provides to juveniles, assuming they understand what it means and know how to assert it.

The Fifth Amendment Privilege and Juveniles

In 1964, Gerald Gault was ordered to serve nearly six years in a state industrial school for allegedly making a prank phone call. His adjudication was based upon a confession obtained without his parents or a lawyer being present and without advising him of the right to remain silent. The Arizona courts decided that such formalities (i.e., the advisement of rights and participation of lawyers and parents) were unnecessary in juvenile court where the goal was treatment and not punishment. The U.S. Supreme Court disagreed.

Recognizing that children are more prone to coerced confessions than adults, the court rejected the notion that the Fifth Amendment privilege did not apply to children due to the labeling of juvenile court as “civil” and not criminal. 387 U.S. 1, 45. Describing the harsh realities of juvenile court, the Supreme Court held that:

juvenile proceedings to determine ‘delinquency,’ which may lead to commitment to a state institution, must be regarded as ‘criminal’ for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the ‘civil’ label-of-convenience, which has been attached to juvenile proceedings. Indeed, in over half of the states, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult ‘criminals.’ In those states, juveniles may be placed in or transferred to adult penal institutions after having been found ‘delinquent’ by a juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.’ And our Constitution guarantees that no person shall be compelled to be a witness against himself when he is threatened with deprivation of his liberty[.]

Id. at 49-50.

Gault also extended the Miranda rule to juveniles, requiring law enforcement officers to advise juveniles in custody of their Fifth Amendment rights prior to any questioning. Under the Miranda rule, statements made by a juvenile while “in custody” are inadmissible in court unless Miranda warnings were given and the juvenile knowingly and voluntarily waived the juvenile’s rights. The Gault court recognized that “special problems may arise with respect to waiver of the privilege by or on behalf of children,” but did not establish any specific requirements for such waivers. Id. at 55. As a result, state laws vary significantly with respect to whether and how juveniles may waive their rights and whether they must do so in the presence of a parent or an attorney.

NC Juvenile Code Requirements

North Carolina law provides juveniles with special protections that go well beyond Gault’s minimum requirements. G.S. 7B-2405, which codifies the privilege against self-incrimination and other due process rights for juveniles, mandates that trial courts shall protect these rights in the adjudication hearing. The Juvenile Code also requires:

Notice to Parents When a Juvenile is in Custody. When a juvenile is taken into temporary custody by a law enforcement officer without a court order, the officer must notify the juvenile’s parents and inform them of their right to be present with their child until a decision is made as to whether continued custody is necessary. G.S. 7B-1901(a)(1).

Advisement of the Right to Parental Presence During Custodial Interrogation. In NC, juveniles under the age of 18 are entitled to have a parent present during a custodial interrogation. Thus, before a law enforcement officer questions any juvenile who is in custody, the officer must advise the juvenile of the following rights: (1) that the juvenile has a right to remain silent; (2) that any statement made by the juvenile can be used against him or her; (3) that the juvenile has the right to have a parent, guardian, or custodian present during questioning; and (4) that the juvenile has the right to an attorney and that one will be appointed if the juvenile is not represented and wants representation. G.S. 7B-2101(a). When officers fail to give these warnings, any statements made by a juvenile while in custody are inadmissible in court. In re K.D.L., 207 N.C. App. 453 (2010).

No Waiver of Rights by Juveniles Under Age 16. NC law now requires that when a juvenile is under the age of 16, a parent or an attorney must be present during the custodial interrogation in order for the juvenile’s statements to be admissible in court. Also, if an attorney is not present, both the parent and juvenile must be informed of the juvenile’s rights; although, only the juvenile can waive his or her rights. G.S. 7B-2101(b).

Advisement of Rights When Accepting Juvenile’s Admission. A trial court may only accept a juvenile’s admission (i.e., guilty plea) after personally addressing the juvenile to make six mandatory inquiries, including informing the juvenile that the juvenile has the right to remain silent and that anything the juvenile says may be used against him or her. G.S. 7B-2407. Because there is a greater duty to protect the rights of juveniles in juvenile proceedings, the court’s failure to address even one of these mandatory inquiries is reversible error. In re T.E.F., 359 N.C. 570 (2005).

Advisement of Rights When Juvenile Testifies. In order to comply with the mandate in G.S. 7B-2405 to protect a juvenile’s privilege against self-incrimination, trial court judges must advise juveniles of the right to remain silent before allowing the juvenile to testify in his or her own delinquency proceeding. In re J.R.V., 212 N.C. App. 205 (2011).

Requiring the advisement of these warnings prior to interrogations by law enforcement and before a juvenile enters admissions in court increases the likelihood that juveniles will understand their rights and will have an opportunity to exercise them. However, potential barriers may still exist.

The Practical Reality

Some advocates argue that these statutory protections do not go far enough, if juveniles cannot fully understand their rights or effectively assert them. According to this article in the ABA Journal, most youth find Miranda rights to be confusing, and nearly 90% of them waive their rights without understanding the consequences.

Another potential barrier to juveniles exercising their rights is the requirement that juveniles must satisfy adult legal standards to trigger their rights under Miranda. Until six years ago when the Supreme Court decided J.D.B. v. North Carolina, police officers applied a “reasonable adult” standard to determine when they must advise a juvenile of Miranda and juvenile rights. J.D.B. held that the Miranda custody test must account for a child’s youth and its unique characteristics. However, recent appellate decisions reveal that courts have not significantly changed how they apply the Miranda analysis to interrogations of juveniles (see this bulletin addressing the reasonable child standard).

Advocates also argue that juveniles should not be allowed to waive their rights without the assistance of a parent or attorney. North Carolina law, by requiring the presence of a parent or attorney during custodial interrogations of juveniles younger than 16, implicitly recognizes that children lack the capacity to understand their rights without a helpful adult. Despite this protection, juveniles continue to face barriers when attempting to invoke their rights.

In 2015, the NC Court of Appeals held in State v. Saldierna that a 16-year-old possibly attempted to invoke his right to have a parent present during a police interrogation when he asked the detective if he could call his mother, which triggered a requirement that the interrogating officers clarify his statement before proceeding. However, last December, the NC Supreme Court reversed the decision. It held that a juvenile must clearly and unambiguously invoke the statutory right to have a parent present during a custodial interrogation, just like an adult must do to invoke Miranda rights. State v. Saldierna, __ N.C. __, 794 S.E.2d 474 (2016). A prior blog post discusses why the Supreme Court’s decision possibly conflicts with J.D.B.’s mandate that police officers and courts must account for the special vulnerability of juveniles during police interrogations.

Despite these potential barriers, significant progress has been made in the fifty years since Gault, especially in North Carolina.  Let us know your thoughts about additional ways courts can better protect a juvenile’s rights.

For more, please check out the other pages on the Gault at 50 series on this site and the “On the Civil Side” blog by Professor LaToya Powell.

A Review of Saldierna by Guest Blogger Martin Moore

Martin Moore

Most recently, State v. Saldierna, 794 S.E.2d 474 (2016) has brought into question my understanding of how the North Carolina appellate courts view juveniles.  In the midst of a strong push by many judges, prosecutors and defense attorneys for legislators to raise the age of adulthood for criminal purposes, the North Carolina Supreme Court essentially places the onus upon juveniles to affirmatively invoke their statutory rights.

 If you haven’t read LaToya Powell’s blog post on Saldierna, it offers a thorough analysis of the facts, ruling, and dissent and can be found here.  I will only offer the highlights as necessary to address some questions about what impact Saldierna may have going forward.

Saldierna Review

Facts

In Saldierna, a 16-year-old juvenile was arrested for his alleged role in burglaries of homes in Mecklenburg County.  During a custodial interview, the juvenile asked to call his mother, specifically asking “Um, can I call my mom?”  The interrogating officer allowed him to place the call, but the juvenile was unable to reach his mother and subsequently returned to the booking area where the interview resumed and the juvenile confessed.

The trial court denied the defendant’s motion to suppress the statements after the call to his mother and determined that the interview was conducted in a fashion consistent with the requirements of N.C.G.S. § 7B-2101 and was not made in violation of his Miranda rights.

 

Court of Appeals

The Court of Appeals opined that while § 7B-2101(a)(1), (2), and (4) are essentially codified, Constitution-based Miranda rights and must be invoked clearly and unequivocally, § 7B-2101(a)(3) is a “purely statutory right granted by our State’s General Assembly…” Id. at    , 775 S.E.2d at 332. The appellate court noted that their “review of the provisions of section 7B-2101 reveals an understanding by our General Assembly that the special right guaranteed by subsection (a)(3) is different from those rights discussed in Miranda and, in turn, reflects the legislature’s intent that law enforcement officers proceed with great caution in determining whether a juvenile is attempting to invoke this right.” Id. at    , 775 S.E.2d at 332.

The North Carolina Court of Appeals reversed the trial court’s order denying the motion to suppress and vacated the judgments entered on the defendant’s guilty pleas, remanding the case back to the trial court. State v. Saldierna,     N.C. App.    ,    , 775 S.E.2d 326, 334 (2015).

 

North Carolina Supreme Court

The North Carolina Supreme Court reversed the decision of the Court of Appeals.  The Court held that a juvenile’s right to have a parent present during a custodial interrogation is analogous to the constitutional right to counsel and the same standard must be applied to such situations.  Saldierna, __ N.C. at __, 794 S.E.2d at 478.

Following the guidance of Davis v. United States, the Court ultimately determined that the Saldierna did not clearly and unequivocally invoke his right to a parent’s being present and thus his statutory rights, N.C.G.S. §7B-2101(a)(3) were not violated under  were not violated:

“Although defendant asked to call his mother, he never gave any indication that he wanted to have her present for his interrogation, nor did he condition his interview on first speaking with her.  Instead, defendant simply asked to call her…As the trial court pointed out, defendant’s statement was at best an ambiguous invocation of his right to have his mother present.  As in Davis, without an unambiguous, unequivocal invocation of defendant’s right under N.C.G.S. §7B-2101(a)(3), law enforcement officers had no duty to ask clarifying questions or to cease questioning.”

Id. at 479.

This case appears to leave juvenile defenders in an increasingly difficult position.  The varying levels of sophistication and maturity alone have placed a significant burden on young men and women as well as their attorneys in navigating a very complex set of rules.

I imagine most juvenile defenders have at least one story of a young client who struggled, despite their best efforts, to fully understand even the plea transcript used in juvenile court.  With little surprise, a juvenile in a high-stress, custodial interrogation with a law enforcement officer may find themselves in similar difficult straits attempting to understand and invoke their rights under § 7B-2101(a).

While the facts of Saldierna alone can leave one with a sour taste in their mouth, what I envision as most troubling is the tone the Supreme Court sets with this case.  The Court appears to have placed the burden upon juveniles to not only to know and understand their rights, but to unequivocally, unambiguously assert them.  The rather adult responsibility of being a fully informed, civically astute citizen being placed upon the juvenile appears to run counter to the very idea underlying a fairly distinct court operating for the benefit of those same juveniles.

So what does this mean for cases going forward?

Example/Hypothetical:

Ignoring for a moment the differences between jurisdictions and varying procedure among the counties, entertain the following hypothetical:

Suppose four siblings (A, B, C, and D) are in the custody of the Department of Social Services while the Department looks deeper into abuse and neglect in the household.  Social Worker Jane is assigned to investigate the family, looking specifically into sexual abuse of Sibling A, C, and D by sibling B.

After a brief investigation, there is an allegation that A, B, C, and D may have all been engaged in underage, incestuous sex acts and drug use, without complete clarity on who is the initiating party/catalyst of the illicit activities.  The juveniles’ father, previously primary custodian and caretaker, recently had his parental rights terminated.

Juvenile B finds herself in a custodial interrogation with local law enforcement.  The officers are polite and respectful, advising Juvenile B of all relevant rights and call Social Worker Jane to meet them at the station.  Juvenile B asks “can you call my daddy?”  The officers oblige and call her father.  The officers then wait until Social Worker Jane walks into the interrogation room and begin their questioning.  About 15 minutes into the interrogation, her father arrives and sits in the interview room with B, the officers, and the social worker.  B then makes several incriminating statements with father’s nudging approval, hoping that cooperation will reunite the family quickly.

Instead Juvenile B is charged with several sex and drug crimes and now seeks the advice of counsel.

Has B invoked her statutory right?  Did she properly request a parent’s presence?  Did she have a “parent” present?

Prior to Saldierna, I believe the answers would be more clear: Yes, she invoked her statutory right; her request for parental presence was sufficient; and in effect, Juvenile B had no true parental representation. My contention would be that Social Worker Jane was not serving in any parental, custodial, or guardian-ad-litem capacity and certainly not even acting in the best interest of Juvenile B.  She was (and is) assigned to investigate wrongdoings that may have befallen Sibling A, C, and D, leaving her ill-positioned to strongly argue that she could fairly be considered a “parent” examining the facts for 7B-2101 purposes.

As in Saldierna, B made a request, ambiguous or otherwise, that I submit the officers should either heed (and arrange for her father to be present at the interrogation) or, at minimum, ask questions to clarify.  The law affirmatively provides this protection to specifically and solely to juveniles.

While my exposure to the civil/family court side of this is limited, I imagine there are some questions that would need to be answered as to the father.  I would submit biological father would be problematic if for no reason other than his lack of custody of his own children.  I have yet to find a case on point that would indicate that such a father would be sufficient for the purposes of being considered a parent for custodial interrogation purposes.

Post-Saldierna, I am not certain the North Carolina Supreme Court would agree.  The Court’s apparent call for a clear and unambiguous request to have his mother present makes it difficult to expect that questions regarding the adequacy of a juvenile’s parental figure would carry much weight.  Does Juvenile B have the responsibility of clarifying her father’s current parental rights and whose custody she is actually in?  Does Juvenile B have to affirmatively request from the court a DSS representative or guardian to serve as a custodian of their specific best interest?  Even asking these questions helps me realize we have shifted into far too sophisticated a standard to assume the juvenile is receiving any semblance of due process protections.

That said, we need not shift too far into the theoretical to glean what protections the legislature intended for juveniles to have; § 7B-2101(c) clearly states: “If the juvenile indicates in any manner and at any stage of questioning pursuant to this section that the juvenile does not wish to be questioned further, the officer shall cease questioning.”  It would seem that the legislature intended to be overly deferential, via the “in any manner” language, to the line of thinking that acknowledges juveniles should not be held to any specific language in invoking their constitutional and statutory rights.

Advising Juveniles

“I want my mommy and my lawyer.”

While reflecting on how to best advise juveniles, the most complete and honest answer: “it depends.”  For practical purposes, I offer the following:

  1. Be Proactive in Advising

We can debate and discuss recidivism and WHY juveniles may find themselves seeking counsel, but the reality for many of us is that we have repeat clients.  Counseling, mentoring, and advising can and should be forward looking, particularly for the client (or two) that may pick up subsequent charges after we are appointed.  Take the opportunity to walk them through your local law enforcement’s juvenile rights advisement form (7B-2101) and help them understand, in plain language, that they have a voice and are entitled to help.

  1. Discovery, Discovery, Discovery

It seems trite and rather obvious to suggest that the more information you have, the better off you’ll be, but it’s true.  Thorough investigation and interviews are often the only way to obtain the facts needed to advocate on behalf of your client.  DSS records (including social worker reports/notes on parents, juvenile client, and siblings), DNA results, officer statements and notes provide invaluable information and potential mitigation for even the worst of cases.

Of course, there is no substitute for experience and open communication.  Reaching out to colleagues, who practice in both adult and juvenile court, willing to share their experiences may yield insight about what information would be helpful or could be missing.  Particularly when dealing with medical records, for example Sexual Assault Nurse Examiner (SANE) evaluations/reports, experienced colleagues can be the best resource for help interpreting these documents and providing referrals to experts.

  1. Develop/Reassess Relationship with DSS Social Workers and DSS Attorneys

I admit, on first glance, this may seem like I asked you to put your hand on a hot stove.  That said, I have found, particularly in sex offense cases, the Department of Social Services are an invaluable resource.  Because many of the sex cases I have worked on often involve either a history of abuse of the juvenile or wrongdoing by another as well, DSS’ interest may align with your client’s.  At the very least, you can chat about the Ritchie motion you plan on filing.

  1. Guardians ad Litem

A guardian can go a long way in helping both you and your client navigate the legal and non-legal challenges.  In our jurisdiction, several of our guardians are attorneys who take (or took) juvenile clients and often continue to work in family (non-criminal) court on DSS and TPR cases.  In two recent cases, the guardian I worked with is a former public defender that was able to connect with my client and form a bond that led to some very helpful information that aided us in securing a reduced charge.

  1. Make the Constitutional Arguments

I believe Saldierna is in part a reflection of the lack of case law focusing on the unique nature of juvenile court.  I choose to believe that the North Carolina Supreme Court has lacked sufficient opportunities to review the reality that juveniles very rarely appear to appreciate that they can, or now, have to, advocate for themselves even when interacting with authority figures they may have been blindly taught to obey without question.

Policy can quickly change, but it’s our responsibility to put the issues before the Court of Appeals and NC Supreme Court.  The Court of Appeals opinion and Justice Beasley’s dissent both included strong, helpful language and I would relish seeing more of that reasoning make its way into COA and Supreme Court decisions, or at the very least, dissents.

Martin Moore is an Assistant Public Defender in Asheville, North Carolina.  He graduated with a Bachelor of Arts in Political Science and Philosophy from the University of North Carolina at Chapel Hill; Moore went on to obtain his Juris Doctor from the University of North Carolina School of Law.  In his free time, he enjoys music and volunteers with a local non-profit helping underprivileged youth gain access to education.  You can connect with him via LinkedIn at https://www.linkedin.com/in/martin-moore-8792814b, or contact him by email or his website at Martin@MartinEkimMoore.com or www.martinekimmoore.com.