OJD Week in Review: Sept. 24 – 28

Happy Friday to all!  This week there is more training to announce and two new podcast segments now available on SoundCloud.

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.

every-day-is-training-day

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.

From Around the Community

Dilemma of DutiesEarlier this week, we posted our newest N.C. Juvenile Defender podcast with Dr. Anne Corbin about her new book, Dilemma of Duties: The Conflicted Role of Juvenile Defenders.  During the podcast, we discuss the background behind Dilemma of Duties, Corbin’s thoughts on how role conflict may be affected once Raise the Age is fully implemented, ideas from other defenders regarding the juvenile justice system, and much more.

This was our longest interview so far, and to make it easier to digest, we’ve broken it into two 25-minute segments.  Please take a moment to listen to part one of two here and feel free to listen to the final segment here to get all of the substantial info Corbin had to share with us.  Also, please check out Dilemma of Duties, which is available in print and e-book format and can be purchased through Southern Illinois University PressAmazon, Google BooksGoodreads, or wherever you like to make your book purchases!

Job Opportunities

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.

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

Dr. Anne Corbin Discusses the Conflicted Role of Juvenile Defenders in New Podcast

In our latest N.C. Juvenile Defender podcast, we talk to Dr. Anne Corbin about her new book, Dilemma of Duties: The Conflicted Role of Juvenile Defenders, which outlines patterns of role conflict experienced by juvenile defenders specifically in North Carolina.  Corbin is a law-trained social scientist with an extensive background in research focused on the professional development of government agents and criminal justice professionals.  In her book, through interviews with 24 juvenile defense attorneys across the Tar Heel State, Corbin examines the role of juvenile defenders and the internal and external pressures experienced by defenders to divert from expressed-interest advocacy to best-interest advocacy.

Dilemma of Duties

During the podcast, we discuss the background behind Dilemma of Duties, Corbin’s thoughts on how role conflict may be affected once Raise the Age is fully implemented, ideas from other defenders regarding the juvenile justice system, and much more.

This was our longest interview so far, and to make it easier to digest, we’ve broken it into two 25-minute segments.  Please take a moment to listen to part one of two here and feel free to listen to the final segment here to get all of the substantial info Corbin had to share with us.  Also, please check out Dilemma of Duties, which is available in print and e-book format and can be purchased through Southern Illinois University PressAmazon, Google BooksGoodreads, or wherever you like to make your book purchases!

OJD Week in Review: Nov. 27- Dec. 1

This week we’ve got plenty of training opportunities to announce and discussions and statistics to share.

Upcoming Trainings

The Office of the Juvenile Defender and North Carolina Advocates for Justice will be hosting a free juvenile defense CLE in Courtroom 1 of the Wayne County Courthouse on 224 E. Walnut St. in Goldsboro, N.C. on Thursday, Dec. 14.  The training, titled “Juvenile Defense – Effective Representation Now and For the Future”, will be held from 1-4 p.m. and a networking lunch will be provided from 12-1.  Presenters will include IDS Regional Defender Valerie Pearce, Assistant Juvenile Defender Kim Howes, and Juvenile Defender Eric Zogry.  Topics discussed will include detention advocacy, the role of counsel and dispositional advocacy and tips and expected practice changes following the implementation of Raise the Age.  Please RSVP with Valerie Pearce by email or call 919-667-3369.

On Dec. 6, the Office of Juvenile Justice and Delinquency Prevention in collaboration with the Age of Criminal Responsibility Research Training and Technical Assistance Center will present a webinar called “Practical Impact of the Age of Criminal Responsibility: Perspectives of Youth and Family Members“.  You can register for the webinar here.

yoda training

On Dec. 14, starting at 4 p.m. EST, the National Juvenile Justice Network will be hosting a one-hour webinar titled “Police-Youth Engagement: Working on the Front Lines” , to discuss improving relationships between youth, police, and the community.  Presenters will include Valerie Slater of the RISE for Youth Coalition and Youth Justice Leadership Institute Fellow and Assistant Chief of the Scottsdale Police Department and Alum of YJLI Helen Gandara.   You can register for the webinar here.

Also, if you’re concerned about your CLE credits and what to do with all of your free time in early 2018, please add Feb. 8, 2018 to your calendar.  The UNC School of Government will be hosting the 2018 Regional Training for Indigent Defense in Sanford, N.C.  This training will provide three CLE credit hours and will focus on defending sex offenses.  Registration will be open by mid-Dec. and our office will continue to keep you updated as new information arises.

Other News You Can Use

We wanted to bring attention to our newest podcast on SoundCloud about the Capital Area Teen Court Program.  In this segment OJD’s Fall Intern Cody Davis engages in a Q&A with Communications & Office Manager Marcus Thompson, as Davis shares his personal experiences as a volunteer and his analysis of the program from his past research.  You can listen to the podcast here and review Cody’s cost benefit analysis of the program here.

Last week the UNC School of Government also posted video in which Phil Dixon interviews Executive Director of Indigent Defense Services Tom Maher.  In this video, Dixon and Maher discuss the rates for privately assigned counsel and the indigent defense system.  You can find the post with the link to the video here.

The National Center for Juvenile Justice along with the Office of Juvenile Justice and Delinquency Prevention (OJJDP) has released a new brief titled “5 Ways State Juvenile Correctional Administrators Can Use Data“.

OJJDP has also released a new Data Snapshot sheet in the Statistical Briefing Book, this time focusing on youth homicide victims.  You can view the latest statistical data here.

That is all for now, folks, and we will continue to provide further updates soon.  Do not forget to subscribe, like, or share on our of our channels.  And to N.C. Juvenile Defenders, we would also like to remind everyone to reach out to us if you are not a part of the juvenile defense listserv so that can add you!  And check back again with us next week.

stay tuned

 

“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

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

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

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

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

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

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

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

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

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

Evalutations Prior to Adjudication:Legal Questions and Practical Impacts

In recent consultations our office has learned that some juveniles, prior to adjudication and sometimes prior to a petition being filed, are having evaluations performed.  Sometimes the evaluations are routine psychological evaluations.  In other instances, evaluations related to alleged abuse in the home are being performed, including when there have been accusations of sexual assault by the juvenile.  In none of these instances was an attorney involved or consulted.  This post will explore the potential legal pitfalls of pre-adjudication evaluations and what attorneys can do to minimize potential damage.  We will present future posts exploring confidentiality and privilege in detail and the intersection with pre-adjudication evaluations.

Pre-adjudication evaluation referrals may come from a number of sources:  law enforcement, social workers investigating allegations of abuse and/or neglect, or from the parents themselves looking for services.  But it appears that referrals may also come from juvenile justice.  The Juvenile Code is mostly silent as to whether an intake juvenile court counselor may recommend an evaluation, either informally or as part of a diversion plan or contract.  However, under NCGS 7B-1706, a juvenile may be referred to counseling, be under certain conditions and actions (as well as the parent) to successfully complete the contract, and any agency shall be notified if providing “treatment.”

It’s unclear whether intake counselors consider the possibility that information provided during evaluations may be used against the juvenile, either at adjudication or disposition.  NCGS 7B-2408 provides that “no statement made by a juvenile to the juvenile court counselor during the preliminary inquiry and evaluation process shall be admissible prior to the dispositional hearing.” However it is unlikely that this protection would automatically be extended to statements made during an evaluation that was requested by the court counselor.

Juvenile defenders should be aware of possible pre-adjudication statements, locate them, and shield their client from any negative impact that may arise from them.  First, ask your client and their parent or guardian whether or not the juvenile has been evaluated or screened either in relation to the case, or within a recent time before the juvenile was court involved.  Obtain copies of any documents from an evaluation through a signed release from the parent or guardian.  Review the documents for any incriminating or otherwise harmful information.  Check with the court counselor to see if she has received any information, and whether or not that information has been shared with the prosecutor.

If incriminating or harmful information is discovered, consider trying to limit or block the information.  Certain privileges exist by statute and evidentiary law that protects information between patients and mental health professionals.  File a motion in limine to prevent introduction of the information, or in the alternative, ask for an in camera inspection of the documents and ask the judge to remove or redact incriminating or harmful information.   You may also consider asking the judge to recuse him or herself after reviewing the information.