From a Lawyer’s View: Resolution of complaints against Guilford and Vance County school systems

Resolution of complaints against Guilford and Vance County school systems means better services for incarcerated students with disabilities

By Tessa Hale, Staff Attorney at Legal Aid of North Carolina’s statewide education justice project, Advocates for Children’s Services.

The first time I visited my client at Vance County Jail, an adult facility, I asked him what he did to fill his time.  He told me that he did push-ups.  He was just 17 years old at that time.  As his education attorney, I knew that as a student who had long ago been identified as needing special education, he was entitled to an education provided by the local school district.  His mother had alerted us to the fact that as he sat in jail, he had not been receiving any educational services whatsoever.  At that time, this client’s case was one of three in our office in which the client had received no educational services while incarcerated in adult jail.  The other two had been incarcerated in Guilford County.  Our education team at Legal Aid decided to file two systemic state complaints on May 29, 2020 with the Department of Public Instruction.

We are proud to announce that the systemic state complaints Legal Aid of North Carolina filed against Guilford County Schools and Vance County Schools have recently been resolved.  The Guilford County Schools complaint was resolved via confidential agreement. The Vance County complaint was resolved following an investigation by the N.C. Department of Public Instruction. More information, including links to documents, follows. 

Guilford County

Legal Aid was pleased with the opportunity to work with Guilford County Schools (GCS) to advance policies and procedures, some of which were already underway by the district, that will enable GCS to improve services for incarcerated students with disabilities by:

  • Reviewing and revising current procedures to require that all GCS students with disabilities incarcerated in any Guilford County jail receive appropriate special educational services;
  • Designating an employee to be responsible for ensuring legally compliant special educational services for students incarcerated in local jails for more than ten school days as well as continuity of educational services when the students exit from local jails;
  • Training special education staff regarding appropriate special educational services for incarcerated students; and
  • Conducting an internal audit for the 2019-2020 school year to determine whether special education services and related safeguards were properly afforded to GCS students with disabilities who were incarcerated in local jails for more than 10 school days and had an Individualized Education Program (IEP) during incarceration.

Learn more

Vance County

The N.C. Department of Public Instruction’s investigation into our complaint uncovered widespread violations of the rights of incarcerated students with disabilities in Vance County Schools (VCS). The department has mandated VCS to follow a corrective action plan, which includes:

  • Various trainings for staff, not only regarding incarcerated students but also concerning other general procedural requirements for students with disabilities;
  • Development of procedures to serve students incarcerated in the local jail;
  • Compensatory education for the named student in the complaint; and
  • Identification of eligible students who were incarcerated with the named complainant and did not receive appropriate services, for the purposes of providing them with compensatory education.

Learn more

The resolution of these complaints comes at a time when the population of youth incarcerated in adult jails has shrunk significantly. As a result of a new state law that went into effect on August 1, 2020, no more minors will be held in adult jail. Still, because the right to special education continues for students who are 18 to 21 and have not yet graduated, the developments in both the GCS and VCS resolutions will help ensure that eligible incarcerated students at all stages receive the special education services they are entitled to. Further, some students who may be identified through audits and who were improperly served before the law was passed will now be entitled to remedies.

Week in Review: Aug 31-Sept 4

Hello September! Who else is ready for sweater weather? Fall is approaching and all we can think about is hot coffee and comfy socks, of course while we continue working :D.

Tip of the Week – What’s an Alford Plea?

A plea under State v. Alford is where an accused will admit to responsibility in court, not because they believe they are guilty, but because they believe it is in their best legal interest to do so.  While Alford is not explicitly afforded in the Juvenile Code, the Court of Appeals upheld an Alford plea, In re C.L. (2011).  Defenders should remember to explain to clients that an Alford plea has the same impacts and consequences as a standard admission.

Defenders, Register for our September CLE!

Friday September 25, 2020, 2:30-3:30 PM OJD is hosting “Defend Children From ICE.” Presented by Helen Parsonage, Board Certified Immigration Specialist and FREE to the first 35 DEFENDERS who register. Discussing the topic of children and immigration, strategies in your defense and other great information, you DON’T want to miss this training. Who could turn down free learning? Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Racial Justice for Youth Toolkit

From the National Juvenile Defender Center, the “Racial Justice for Youth: A Toolkit for Defenders empowers juvenile defenders with the training, resources, and information to fight the over-policing, over-criminalization, and school exclusion of youth of color.

Through the Toolkit, we hope to inspire juvenile defenders to view racial justice advocacy as an integral and essential component of their youth advocacy.”

Please take a moment to sign up for the toolkit. Click here to sign up for a Racial Justice Defender Toolkit account for access to member-only resources that may not be available to the public. In doing so, you are helping to continuously advocate for racial justice throughout a youth’s case and help fight systemic racism in our courts.

HAVE A SAFE AND FUN (SOCIALLY-DISTANCED) LABOR DAY WEEKEND!

Week in Review: Aug 24-28

Happy Friday and the last weekend of August! Only 4 more months left in the year, how will you make them great?

TIP OF THE WEEK

Defenders – you have a statutory right to discovery in all of your juvenile cases (§7B-2300-2303).  Don’t be afraid to use it!  Some jurisdictions provide it without a motion, but it’s never bad practice to file your motion regardless.  You can find a sample discovery motion and order here on our website.

September CLE

Friday September 25, 2020, 2:30-3:30 PM OJD is hosting “Defend Children From ICE.” Presented by Helen Parsonage, Board Certified Immigration Specialist and FREE to the first 35 DEFENDERS who register. Discussing the topic of children and immigration, strategies in your defense and other great information, you DON’T want to miss this training. Who could turn down free learning? Register here. PLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Save the Date!

Save October 2, 2020 from 10 am to 3 pm on your calendars for a symposium on The Roles of Prosecutor and Public Defender in Criminal Justice, Reform, sponsored by NC CRED. More information can be found via by clicking here.

Want to be featured on “A Lawyer’s View?”

LaTobia is looking for guest bloggers to contribute to our Week in Review. Defenders and those in juvenile justice are welcome to write in on topics of their expertise: secure custody, mental health in juveniles, etc! We want to hear from you! There’s plenty more weeks left in the year! Reach out to LaTobia here for more information.

Week in Review: Aug 10-14

Another Friday in the books! Thanks for stopping by to read up on OJD’s week! And stay tuned next week for a brand new A Lawyer’s View installment!

First, an Announcement from AOC:

NCAOC’s Office of General Counsel (OGC) has provided legal advice and guidance to court officials around the State regarding remote juvenile hearings and confidentiality of exhibits. This is a brief FAQ regarding technology, sharing screens and other topics surrounding WebEx hearings in juvenile court. Please read the full document here. It is not intended and should not be interpreted as legal advice or guidance to parties to individual proceedings before the courts.

Tip of the Week

Suppression motions aren’t often used in the District Court setting (outside DWI cases), however juvenile court offers many opportunities for suppression.  The juvenile code outlines the procedure for filing a motion to suppress (§7B-2408.5) and it may be made either in writing before the adjudicatory hearing or orally during the hearing.  Consider whether or not your client’s statement or identifications may be subject to suppression.  Remember – “in custody” is an objective test!  The test is whether a “reasonable juvenile” in the position of the respondent would believe him/herself to be in custody OR that s/he had been deprived of freedom of action in some significant way, and is not based on the subjective intent of the interrogator or the perception of the person under questioning.  That means if your client is in the principal’s office and the SRO is standing in front of the door, would your client feel free to leave?

Thank You!

To everyone that joined our Covid-19: State of our Mental Health Part II webinar last night! Thank you to our speakers, Dorothy Hairston-Mitchell, Jesse Edmonds & Nikki Croteau-Johnson you three did wonderful, giving great insight into our youth in and out of the juvenile system and how best to serve them during these times. From discussions about school, detention, ways to get active and to monitor our children’s mental health, we discussed it all. A bit of everyone joined too, from students to law professionals to the general public. Such great questions and comments! Big takeaway: It takes a village to raise a child.

Don’t Forget!

OJD is looking for guest bloggers to contribute to our new series: A Lawyer’s View. Defenders and those in juvenile justice are welcome to write in on topics of their expertise: secure custody, mental health in juveniles, etc! We want to hear from you! There’s plenty more weeks left in the year! Reach out to LaTobia here for more information.

From a Lawyer’s View: Admissions and Use of Transcript of Admission by a Juvenile

Happy Friday Readers! No Week in Review this week, but please keep reading for our new series: “A Lawyer’s View.”

When may an admission by a juvenile be accepted?  Is a transcript of admission by a juvenile, Form AOC-J-410 required for adjudication?

AOC-J-410 and Legal Requirements

AOC provides numerous forms for use in court proceedings, some required and others not.  While a transcript of admission by a juvenile is not specifically required for adjudication, it is best practice to utilize the form. This form tracks the necessary language set out in the Juvenile Code, N.C. Gen. Stat. § 7B-2407.  Because only adult superior court, not district court, requires plea transcripts, it may be thought that in juvenile court, the transcript of admission is only utilized in felony cases.  It should be noted that 7B-2407 applies to both misdemeanors and felonies. 

N.C. General Statute § 7B-2407 establishes the criteria to determine when admissions by a juvenile may be accepted.  Subparagraph (a) requires the court to address the juvenile personally and inform the juvenile of the right to remain silent and that any statement the juvenile makes may be used against the juvenile; determine if the juvenile understands the nature of the charges; inform the juvenile of the right to deny the allegations in the petition; inform the juvenile that, by the juvenile’s admissions, the juvenile is waiving the right to be confronted by the witnesses against the juvenile; determine that the juvenile is satisfied with the juvenile’s attorney; and inform the juvenile of the most restrictive disposition.

Subparagraph (b) requires the court to inquire of the prosecutor, the juvenile’s attorney and the juvenile personally to determine whether there were prior discussions involving admissions, whether the parties have entered into any arrangements and, if so, the terms of any admission.  Further, the court is required to determine whether “any improper pressure was exerted.”  The statute specifically states, “The court may only accept an admission after determining that the admission is a product of informed choice.”

Subparagraph (c) requires the court to determine that there is a factual basis for the admission based upon any of the following: a statement of facts by the prosecutor, a written statement of the juvenile; sworn testimony which may include reliable hearsay; or a statement of facts by the juvenile’s attorney.

Form AOC-J-410, if followed closely, complies with the statutorily required inquiry of N.C. Gen. Stat. § 7B-2407.  While some districts, as a local practice, only utilize a transcript of admission for felonies, this can be problematic.  For example, if disposition is transferred to another county, newly appointed counsel on disposition should determine if the juvenile was properly advised at adjudication.  The juvenile may not know or remember being addressed by the presiding judge.  In the absence of a transcript of admission, counsel may need to obtain a copy of the recorded proceeding to determine if the proper inquiry was completed and whether the terms of the admission by the juvenile and the Court’s order are the same.  (Another AOC form provides the motion and order for obtaining the recording.  AOC-G-115.)

Caselaw

Failure to make the proper inquiry is reversible error.  Addressing each statutory prong of N.C. Gen. Stat. § 7B-2407 is mandatory.  In re T.E.F., 359 N.C. 570, 614 S.E.2d 296 (2005) establishes that the standard is not totality of the circumstances and failure to make one of the inquiries (in that case, whether the juvenile was satisfied with his counsel) is reversible error.  See also In re A.W., 182 N.C. App. 159, 641 S.E.2d 354 (2007) where both adjudication and disposition were reversed when there was no indication of informing the juvenile of his right to remain silent and that statements made could be used against him or that he had a right to deny the allegations; In re N.J., 221 N.C. App. 427, 728 S.E.2d 9 (2012) where an adjudication was reversed when the juvenile was not advised of the most restrictive disposition prior to accepting the admission; and In re Register, 84 N.C. App. 336, 352 S.E.2d 486 (1987), stating that it is impossible for a judge to determine that the admission is the product of informed choice without making the required inquiries of each child.  Counsel should note that the Court of Appeals has determined that 7B-2407 does not apply to probation violations.  In re D.J.M., 181 N.C. App. 126, 638 S.E.2d 610 (2007).

AOC-J-410 as a Helpful Tool

In addition to providing verification of the proper N.C. Gen. Stat. § 7B-2407 inquiry, AOC-J-410 provides counsel an opportunity to ensure that the juvenile understands the proceedings and can aid communication between counsel and the juvenile.  By asking questions about the juvenile’s level of education and any medications in a more formalized way, an attorney can gain additional information to aid in proper advocacy.  Counsel should consider keeping a copy of the transcript of admission for use during the adjudication.  This can be particularly useful for juveniles with Individualized Education Plans (IEPs) or for juveniles who are visual rather than auditory learners.  Reviewing a transcript of admission in advance will help prepare the juvenile for court and can decrease anxiety regarding court.  It may be the Court’s first opportunity to see and address the juvenile client, so preparation in advance is a necessity. 

Finally, should a matter be transferred to another county for disposition, the transcript of admission can provide useful information to counsel for disposition advocacy.  In addition to providing information regarding the juvenile’s educational level and whether the juvenile is taking any medications, form AOC-J-410 provides documentation of the terms of any arrangement regarding admissions.  Clerical errors on adjudication orders may be easily addressed with comparison to a transcript of admission.  A local practice that dictates that a transcript of admission only be utilized for felonies may increase the risk of errors in adjudication orders for misdemeanor offenses. 

Best Practice Based upon N.C. Gen. Stat. § 7B-2407

While use of a transcript of admission does require additional time in and out of court, best practice is to utilize AOC-J-410.  The Court may accept an admission by a juvenile only after addressing each of the criteria set out in N.C. Gen. Stat. § 7B-2407.  The statute applies equally to both misdemeanors and felonies, and failure to address even one of the criteria is reversible error.  Use of form AOC-J-410 in all cases ensures that the juvenile is properly advised pursuant to N.C. Gen. Stat. § 7B-2407, decreases the risk of errors in adjudication orders and aids in communication with the client and disposition advocacy.  If counsel is appointed in a juvenile matter for disposition following transfer from another county, counsel should carefully review the Court file and be prepared to obtain and review any recordings when a transcript of admission has not been utilized.  In cases where the proper statutory inquiry was not made, Counsel should advise the juvenile regarding entering notice of appeal.

Written by: Assistant Juvenile Defender Terri Johnson. Terris  graduated Cum Laude with a Bachelor of Science in Psychology from Duke University in 2000.  She received her Juris Doctor degree from UNC Chapel Hill School of Law in 2003, and was admitted to the North Carolina Bar in 2003.  Her practice areas included criminal law, family law and juvenile law and has focused on juvenile law as OJD’s Assistant Juvenile Defender in delinquency court in both Iredell and Alexander counties.

Week in Review: May 4-8

Thanks for stopping by for another Week in Review! Plenty of meetings and calls this week as NC gears up to reopen our courts and we’re so ready to share new ways to pursue juvenile justice in this new time. Remember, if you have any questions or suggestions, we are more than willing to help.

Also! OJD is looking to develop and provide webinar training to our Juvenile Defenders throughout this pandemic. We are currently requesting topics and information you would like to have discussed. Please email Austine Long with your thoughts. Thank you.

TIP OF THE WEEK

Youth Development Center commitment

We are focusing our Tips of the Week on stages of juvenile proceedings that disproportionately impact youth of color. This week we are considering commitment to a youth development center (YDC):

  • Whenever disposition is being entered for your client, always argue for the lowest level of disposition.  A small number of points, or a violation of probation, can quickly send your client to YDC.
  • Consult with the court counselor and the ADA on their recommendations to the court.  If possible, negotiate a lesser disposition than YDC commitment before court.
  • Meet with your client before the dispositional hearing and provide the court with an alternative disposition plan that considers the safety of the community and your client’s needs.
  • Provide in court testimony from supportive community members.
  • Consider offering the court recent recidivism studies which indicate that commitment to YDC is factor for increased recidivism in juveniles. 

Resources

  • May 14, 2020 at 11 AM: NC CRED presents an interactive round-table webinar with leading experts in the North Carolina public health and criminal justice systems. The webinar will explore current conditions in North Carolina and discuss actionable steps to help mitigate the adverse effects on people in North Carolina who is a webinar about preparing and conducting video conference secure custody hearings. The speaker will discuss best practices, confidentiality and other important issues concerning video conferencing hearings.are involved with the criminal justice system. To register for this webinar, click HERE.
  • From the Coalition for Juvenile Justice and the National Juvenile Justice Network member call, “COVID-19: The Heightened Dangers of Confinement” here are some resources they discussed.
  1. Distinction between medical isolation and solitary (AMEND at UCSF)
  2. A list of disability specific issues/resources (NDRN)
  3. Center for Educational Excellence in Alternative Settings
  4. Council of Juvenile Justice Administrators
  5. National Commission on Correctional Healthcare
  6. National Partnership on Juvenile Service
  7. Stop Solitary for Kids
  8. Tolerance.org

Thanks for stopping by!

Week in Review: Apr 27 – May 1

Welcome to May Readers! April went by a whole lot faster than March and we’re glad everyone is still safe and joining us for another OJD Week in Review.

TIP OF THE WEEK

Secure Custody

We are focusing our Tips of the Week on stages of juvenile proceedings that disproportionately impact youth of color. This week we are considering secure custody:

  • If possible, find out if your client is being detained before the initial secure custody hearing.  It’s critical to start the attorney-client relationship early and inform your client of their rights as well as what to expect at the hearing.
  • If you meet your client for the first time at the initial secure custody hearing, take a few minutes to introduce yourself, describe your role, and answer any questions about the hearing.
  • Come up with a plan for release:  reasonable conditions on your client, alternative placements, or other information that will help the court support a decision for release.
  • If your client is shackled, argue for the removal prior to court starting.  Shackling has an intense, lasting impact on your client and removal can be a good first step to developing confidence with your client. 
  • If your client is not released, make a plan to contact or visit them in detention to discuss next steps.  Make sure the parent/guardian has the contact information for the detention center as well to facilitate calls or visits.
  • If your client is released, make an appointment to meet before the next court date.  Review any conditions of release and encourage your client to contact you with any questions.

JOB OPPORTUNITY

IDS is seeking applicants for the Contracts Administrator and the position has been posted here:

https://www.governmentjobs.com/careers/northcarolina/jobs/2768601/contracts-administrator

The position closes May 7 at 5pm. This is a great way to contribute to indigent defense in North Carolina for a detailed and energetic individual.

RESOURCES

  1. Resources from Racial Justice for Youth: A Toolkit for Defenders can help you advocate for your many detained clients who are youth of color:

Sign up to access the Toolkit’s defender-only resources.

2. SAVE THE DATE: THURSDAY, MAY 14 11:00 AM to 12:30 PM

COVID-19: Implications of the Pandemic within the Criminal Justice System

NC CRED presents an interactive round-table webinar with leading experts in the North Carolina public health and criminal justice systems.

3. Rewatch Strategies for Youth Webinar: Improving Law Enforcement/Youth Interactions in Times of Crisis

HOPE THE START OF YOUR MONTH AND WEEKEND ARE GREAT!

THANKS FOR READING! JOIN US NEXT FRIDAY!

Week in Review: April 20-24

Hello from Friday with OJD. Another work from home week means that OJD is rounding up resources and information for you, anything we can do to help. It always goes without saying but thank you so much for your dedication to continuing the good (juvenile justice) fight, even from your homes.

TIP OF THE WEEK

Complaints Received

We are focusing our Tips of the Week on stages of juvenile proceedings that disproportionately impact youth of color. This week we are considering complaints received:

Attorneys are appointed to cases once a complaint is received by juvenile justice, then filed as a complaint.  So generally attorneys can’t impact whether or not a complaint is received.  But attorneys can prevent the case from going to adjudication by:

  • Asking for a dismissal for various reasons, such as the victim no longer wishes to prosecute or the juvenile has already made amends through a mediation program or restitution.
  • Continue the case for an opportunity for the juvenile to participate in a program such as suggested above, or Teen Court if your jurisdiction has one.
  • After an admission, ask the court to informally defer prosecution without an adjudication.

Resources

  1. IDS recently released information on how PAC can file fee apps for teleconferencing and interim fee apps. Please visit ncids.org for more information.
  2. Legal Aid-ACS has synthesized the federal and state guidance that has come out to date and offer concrete tips and resources for advocating for students during school closures. You can get more information here. There are five documents: 
  3. On Friday, May 1st from 11 AM to 12 PM, Legal Aid-ACS is also hosting a Coronavirus-and-Education Know Your Rights training via Zoom and Facebook Live.  The ZOOM link is at: https://zoom.us/j/91168580266. This session will include overviews of recent guidance, along with lots of practical tips for advocating for students. For those who can’t attend the live session, a video recording will also be available on Legal Aid of NC’s Facebook page (https://www.facebook.com/LegalAidNC ) for families and advocates to access whenever they are available.

THANKS FOR READING!!

AS ALWAYS, HAVE A GREAT WEEKEND AND BE SAFE!!

Week in Review: Apr 13-17

Happy Friday Readers! It’s been another hard (at home) working week for OJD, but with a constant focus on providing the most beneficial and practical information during this time. This week we don’t have a tip for you, rather an important message regarding racial justice for juveniles of color and secure custody. With COVID-19 affecting our detention centers and YDCs, it’s vital to remember that fair treatment includes every juvenile. Read below for viable resources to combat that.

In June 2019 a new study on North Carolina disproportionate minority contact was published.   Using data from DJJ, the study showed that the race of a juvenile contributes to disproportionate negative outcomes, especially for black youth.  Specifically, black youth were more likely to have complaints filed against them, be placed in secure custody, or committed to a youth development center (YDC).  In an attempt to better serve youth color in the system, here are several resources on representing youth of color:

Other Resources from the National Juvenile Defender Center

In addition, the next three tips of the week will focus on the stages of complaints filed, secure custody, and youth development center commitment.

You can also download this post here for your keeping.

North Carolina Defenders

Yesterday we released an important notice regarding operational changes to instituted by state juvenile justice officials in response to the Covid-19 pandemic that may affect youth held in detention. Please continue to refer to that release for resources on how best to serve your clients in secure custody and for the encouragement of alternative options.

THANKS FOR READING AND STAY TUNED FOR NEXT WEEK!

BE SAFE AND STAY HEALTHY!

Important North Carolina Defender Alert

Defenders,

We want to make you aware of operational changes instituted by state juvenile justice officials in response to the Covid-19 pandemic that may affect youth held in detention. You can find the official policy release here.

Of particular concern is the provision providing for “Placement of all juvenile detention center/crisis and assessment center admissions in medical room confinement for 14 days and until cleared by a medical provider to join the general population.” Our understanding after speaking with DJJ is that newly admitted youth are being segregated into pods and largely kept in their cells, according to protocols advised by the Center for Disease Control.

While DJJ is trying to engage these youth so they don’t feel isolated, the negative effect of solitary confinement on the mental health of youth is well documented. We also understand that if the youth leaves the facility and returns (including for secure custody hearings) the youth is placed back into medical room confinement for 14 days.

We want to encourage you to talk to your client if s/he is being held in detention to find out what is happening in that particular detention facility, and use not only DJJ’s policy of encouraging release by use of electronic monitoring or other community-based options (as outlined in the policy above), but also the information available in the links below to help inform the judge of the significant negative consequences of this type of confinement of youth and their mental health – especially youth with already existing mental health challenges. If your jurisdiction does not yet utilize audio/visual transmission for detention hearings, investigate this option as it will impact whether your client will have to re-enter medical room confinement.

Below are resources that you can consider using when arguing for your client to be released from detention:

  • Language from the Governor’s and NCDPS response to the Petition for Writ of Mamandus that was filed (the language pertaining to juveniles held in detention begins on page number 25 in the brief, but page 33 in the PDF).
  • ACLU briefing paper “No Child Left Alone” – Not related to Covid-19, but addresses the devastating effects of solitary confinement, regardless of what it’s called (i.e. isolation, medical confinement, etc.)
  • The Marshall Project article “What Happens When More Than 300,000 Prisoners are Locked Down?” – while not entirely juvenile focused, this also discusses the effects of isolation in confinement. “Solitary confinement can increase anxiety and disordered thinking, worsen mental health problems and heighten the risk of suicide.”

Please don’t hesitate to reach out to us if you need help crafting a motion or argument – we’re here to help!

You can download and save a copy of this alert here.

Thank you for all that you do and are doing during this difficult and trying time.