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: Sept 14-18

Readers! Have we been the only ones looking forward to Friday? We can’t be. So let’s get your weekend started with a fresh blog and a couple slices of information pizza (yeah….we’d rather have a large NY Pepperoni too!)

Heads Up!

OJD is working from home and voicemail’s are checked every other day. For the fastest reply and communication, please send us an email. Email’s can be found HERE on our contact page, if you need. THANKS!

TIP OF THE WEEK – Brought to you by Raise the Age

Where Can I Find the Law on RTA?

If you want to see the Session Laws which include the Raise the Age changes, see:

Senate Bill 413: 2019 Session Amendments to the RTA Bill (Juvenile Justice Reinvestment Act)

Senate Bill 257: The final bill budget for Session Law 2017; info pertaining to the Juvenile Justice Reinvestment Act can be found on pages 309-325

You can also check out the NC General Assembly website.  Look under “Bills and Laws,” then “General Statutes.”  You can search by citation or test, or you can look at Chapter 7B under the Table of Contents, and see the most recent changes to statute text on the right side of the statute.

HAVE YOU REGISTERED YET?

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. Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Symposium: The Roles of Prosecutor and Public Defender in Criminal Justice Reform

October 2, 2020 from 10:00AM-3:00PM (EST). This will be a virtual symposium presented by the North Carolina Commission on Racial and Ethnic Disparities (NC CRED) in collaboration with the National Consortium on Racial and Ethnic Fairness in the Courts. The Keynote Speaker is Jonathan Rapping, Founder and President, Gideon’s Promise, Atlanta and will also feature presentations from prosecutors and defenders from across the country and of course, North Carolina. You can see a list of speakers and topics, by clicking HERE. To register, click HERE. Thank you!

A Bit of Information Pizza…

The School of Government has issued a new bulletin on Indigent Defense practice during COVID-19. The principal author Ian Mance, is the COVID-19 Resource Attorney in the public defense education group at UNC. Here is the link: https://www.sog.unc.edu/publications/bulletins/indigent-defense-attorneys-and-covid-19-faqs-about-practicing-during-pandemic

Click HERE for a link to an earlier bulletin by Ian about possible grounds for securing release of inmates during COVID-19

For additional resources, please see the COVID-19 Tool Kit on the School of Government Public Defense Education website.

As always, thanks for all that you do for our youth, communities and neighbors. Have a safe, socially distanced weekend, enjoy the upcoming Fall and we will see you next week.

Week in Review: Sept 7-11

Happy Friday Readers! Another week down in 2020 and we’re still all trying to figure it out. But no worries, OJD is here to help along the way. Before we get started, we take a moment to recognize the importance of today, and remember those lives lost and the heroes from September 11, 2001.

Tip of the Week – Prior Record Level Matters

If your client’s prior record places him/her in a position for the judge to enter a level 1 OR 2 dispositional level, ALWAYS argue for a level 1 disposition.  You can find a copy of the disposition chart here.  Make sure to check the final written order for accuracy.

Who could turn down free learning? CLE OFFER!

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. Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Symposium: The Roles of Prosecutor and Public Defender in Criminal Justice Reform

October 2, 2020 from 10:00AM-3:00PM (EST). This will be a virtual symposium presented by the North Carolina Commission on Racial and Ethnic Disparities (NC CRED) in collaboration with the National Consortium on Racial and Ethnic Fairness in the Courts. The Keynote Speaker is Jonathan Rapping, Founder and President, Gideon’s Promise, Atlanta and will also feature presentations from prosecutors and defenders from across the country and of course, North Carolina. You can see a list of speakers and topics, by clicking HERE. To register, click HERE. Thank you!

“A Lawyer’s View” Needs an October Submission

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 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.

From a Lawyer’s View: The Importance of Creativity in the Representation of Juveniles at Disposition

Happy Friday Readers! No Week in Review this week, but please keep reading for our 2nd installment in our new series: “A Lawyer’s View.”

The Importance of Creativity in the Representation of Juveniles at Disposition: Advocating for Alternative Dispositions

Dispositional hearings often feel a bit like the players are on the scene of the Bill Murray movie “Ground Hog Day.” The juvenile court counselor presents his or her recommendations to the court. The attorney has no questions but desires to be heard. The attorney says a few nice things about his or her client. The Court makes findings, and then adopts the recommendations of the court counselor. This scene is repeated regularly every day in delinquency court.

Although much of the time the recommendations of the juvenile court counselor are well-suited to address the juvenile’s rehabilitative and treatment needs, it is the duty of the juvenile’s attorney to make recommendations for alternative solutions when appropriate. Often, that necessitates a bit of creativity on the part of the attorney for the juvenile.

N.C.G.S. §7B-2506 provides a comprehensive list of dispositional alternatives available to the court for delinquent juveniles. These dispositional alternatives are affected by the dispositional limits for each class of offense and the delinquency history level of the juvenile. (See N.C.G.S. §7B-2506-2508)

The first step to making creative suggestions to the court regarding the dispositional alternatives is for a juvenile’s attorney to make themselves knowledgeable about the services available in their community. Attorneys who represent juveniles in delinquency cases should also get to know their clients, and the client’s parents in order to determine the juvenile’s rehabilitative and treatment needs.

Oftentimes, parents of the juvenile are well-equipped to ensure that the juvenile’s needs are being met. Attorneys should meet with their clients ahead of the scheduled court date and make inquiry of the parents regarding the needs of the juveniles, and what provisions can be made prior to the disposition to show the Court that the parents can meet these rehabilitative and treatment needs. Parents can arrange for therapy, substance abuse treatment, private community service, or any number of other services. Parents can implement in-home punishments such as a curfew, attend school regularly, remain on good behavior, not associate with anyone deemed inappropriate by the parent, or be at any place deemed inappropriate by the parent. These are typical conditions of a juvenile’s probation that do not necessarily require supervision by a juvenile court counselor. The juvenile’s attorney should prepare to inform the court regarding the conditions put in place by the juvenile’s parents, the parents’ plans for implementation, and provide examples of how the parents’ plans are being carried out in the home.

When an appropriate plan can be implemented by a juvenile’s parents, the juvenile’s attorney can ask the court to dismiss the disposition, or to place conditions on the juvenile under the parents’ supervision. Remember not all juveniles who are adjudicated delinquent require the supervision of a juvenile court counselor to address their rehabilitative and treatment needs. Attorneys should not rely on the juvenile court counselor’s court report to determine what those rehabilitative and treatment needs are. Attorneys should be prepared at disposition to advise the court regarding the needs of the juvenile and to make recommendations regarding the best way to address those needs.

Attorneys can get too comfortable with the “groundhog effect,” walking into court on the disposition court date, reading the recommendations of the juvenile court counselor, and not coming prepared to make their own recommendations. Oftentimes, this is because they assume that the judges are also on autopilot and reflexively adopt those recommendations. Judges look to the juvenile court counselor, the assistant district attorney, and the attorney for the juvenile to inform them of the juvenile’s rehabilitative and treatment needs and to make suggestions tailored to address these needs. Taking a little time to educate yourself about resources available in the community and to inform yourself about the needs of the client will assist you with becoming more creative in your suggestions to the court, and in achieving a better outcome for your client.

Written by: Honorable Christine Underwood. Judge Underwood presides over district court in Judicial District 22A, which includes Alexander and Iredell counties. She has been on the bench since January 2009. Before that, Judge Underwood was in private practice. She held a contract with the State of North Carolina to represent juveniles in delinquency court. Her other areas of practice included parent representation in Abuse/Neglect/Dependency court, criminal law, and family law. She graduated with a Bachelor of Science from Appalachian State University in 1994 and received her Juris Doctor from Campbell University’s Normal Adrian Wiggins School of Law in 2004.

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.

Week in Review: July 27-31

Good morning readers! It’s the last week in July, can you believe it? Is time flying by or is it just us? Let’s start your weekend off with a new OJD blog.

Raise the Age Tip of the Week

How Do I Know the State Will be Seeking the Gang Enhancement Against My Juvenile?

Under current law, there is no process for notice to the juvenile and the juvenile’s attorney that the state is seeking the gang enhancement.  As the juvenile’s attorney, you should consider the following:

  • Get a copy of the gang assessment from DJJ prior to adjudication
  • Argue that the notice of gang enhancement be presented pre-adjudication
  • Develop a theory of defense against client’s involvement in gang activity
  • Prepare for a hearing on the issue
  • Request a hearing, similar to an adjudicatory hearing
  • Request the court make findings on the record and appeal where  appropriate

A Bit of Housekeeping!

OJD is working from home for now and if you need to reach us for a case consultation, upcoming training, or have a question about court? Don’t forget you can email us for a faster response! Click here for links to our email addresses.

Upcoming Events

August 7, 2020 from 3:00-4:00 PMJen Story, Tessa Hale, Mary Stansell are presenting a new CLE: Making the Connection- Education Advocacy and Juvenile Defense. Come to this session to learn the basics of special education laws and school-based intervention plans; how to issue-spot when students’ unaddressed needs in schools are exacerbating their behaviors; and how to incorporate this knowledge into your advocacy in a way that sets juveniles up for long-term success.  You can register for this CLE here and will be sent the meeting link information afterwards.

Thursday, August 13, 6:00-7:30 please join us for COVID-19: The State of Our Mental Health Part II. This session will focus on the mental health and issues younger adults and youth are facing due to this pandemic. Featuring Nikki Croteau-Johnson, MA, LPA, Clinical Program Director at NC Child Treatment Program and Dorothy Hairston-Mitchell, Clinical Associate Professor and Supervising Attorney for the Juvenile Law Clinic at NCCU. Please click here to register for the event. You will receive the Zoom link afterward registering.

Opportunity!

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.

THAT’S ALL FOR JULY! HAVE A GREAT WEEKEND!

Week in Review: July 13-17

Happy Friday Readers! Can you believe it’s the middle of the month already? Well, here’s to another week down with a tip, a couple announcements and an opportunity!

TIP OF THE WEEK!

If you have a client being held on a secure custody order – remember it’s the STATE’s burden to prove to the court, by clear and convincing evidence, that the juvenile should remain in custody AND no less intrusive alternative will suffice (§7B-1906(d)).  That means it’s not the court counselor’s role!  Ask the court for less restrictive means, for example electronic monitoring or house arrest.  If the court finds that your client should remain in custody, the court is bound by the criteria in §7B-1903 and must make written findings of fact.

Annoucements!

DEFENDERS! DON’T MISS OUT ON TWO FREE CLEs! 

July 24, 2020 at 3:00-4:00 PM. Interviewing and Counseling Youth: Presented by Dorothy Hairston-Mitchell, Clinical Assistant Professor & Supervising Attorney, Juvenile Law Clinic at NCCU. You can register here and will be sent the meeting link information afterwards.

August 7, 2020 from 3:00-4:00 PMJen Story, Tessa Hale, Mary Stansell are presenting a new CLE: Making the Connection- Education Advocacy and Juvenile Defense. Come to this session to learn the basics of special education laws and school-based intervention plans; how to issue-spot when students’ unaddressed needs in schools are exacerbating their behaviors; and how to incorporate this knowledge into your advocacy in a way that sets juveniles up for long-term success.  You can register for this CLE here and will be sent the meeting link information afterwards

Both CLEs are DEFENDER ONLY! OJD is covering CLE costs for the first 30 registrants and CLE is pending.

SAVE THE DATE! July 30, 2020 6:00-8:00 OJD along with Dorothy Hairston-Mitchell of the NCCU School of Law and The Virtual Justice Project, are hosting, COVID-19: The State of Our Mental Health Part II. More details to come!

Opportunity!

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.

Job Opportunity!

The Center for Death Penalty Litigation (CDPL) in Durham, North Carolina seeks to hire a new staff attorney to support its mission.

CDPL is a non-profit law firm and advocacy organization that works to provide the highest quality representation to people facing execution, and to end the death penalty in North Carolina. CDPL is seeking to hire an attorney with at least two years of relevant experience interested in working on post-conviction cases and, if desired, trial cases.

Applicants should send a cover letter by August 31, 2020, detailing interest, as well as a resume, the names of two professional references, and a writing sample of approximately 10 pages to Ms. Barrie Wallace at barrie@cdpl.org. For additional information, please contact Barrie Wallace at barrie@cdpl.org.

Please click here for more information and a list of responsibilities for this position.