From a Lawyer's View: Collateral Consequences
How many times have you heard, “It’s just juvenile court…” or “What’s the big deal? It won’t follow them.” Often clients’ family members, law enforcement, prosecutors, judges, and yes, even defense counsel, mistakenly believe that juvenile records are completely sealed or simply disappear after they reach the age of 18. Many people believe there are no long-term negative impacts of a juvenile adjudication regardless of the level of offense. Counsel should, therefore, make efforts to educate all court personnel, the clients, and the clients’ family members about the collateral consequences of juvenile adjudications.
1. Social Consequences
First and foremost, juvenile proceedings are open to the public pursuant to N.C.G.S. 7B-2402 unless the court finds good cause upon the motion of either party to close the proceeding. The court may close the proceeding on its own motion. Even in closed hearings, the court may allow the victim, victim’s family members, law enforcement or other witnesses to remain in the court room. Therefore, there is a risk that information about the juvenile or the juvenile’s case will be shared by those in the court room with others beyond the courtroom. A juvenile may then be impacted by community rumors and judgment. Consider, for example, a juvenile charged with dissemination of obscenities for consensual “sexting” with his/her significant other. Even if the offense is reduced from a felony to a misdemeanor or dismissed entirely, individuals in the courtroom may communicate the events to others. Personal information regarding the juvenile’s family situation or mental health issues may then also be repeated outside of the courtroom setting. Particularly in smaller communities, this can lead to the juvenile being ostracized and socially isolated. N.C.G.S. 7B-3000 and 7B-3001 limit access to juvenile records but can not prevent information from being obtained and shared as a result of an open courtroom. Counsel can and should move to close the courtroom in order to protect confidentiality.
2. Criminal Consequences Beyond Juvenile Court
While social and community consequences are concerning, other collateral consequences may have more long-term negative effects. Counsel should note that a juvenile adjudication carries consequences for future court proceedings. In addition to delinquency points and sharing of records with law enforcement, those clients who are charged later as adults are not free from the consequences of past juvenile adjudications. Although a juvenile adjudication is not a conviction, adjudications for felonies and A1 misdemeanors where the adjudication occurred after the juvenile reached the age of 13 can be used for pretrial release and plea negotiations. See N.C.G.S. 7B-3000(e). Adult probation officers may review a juvenile record for felony adjudications without a court order to determine risk level for supervision of adult offenders under 25 years of age. See N.C.G.S. 7B-3000(e1). For any juvenile adjudication for a sex offense, counsel should be aware of SORNA and the possibility of future registration requirements in other jurisdictions. Adjudications of A-E felonies are admissible under G.S. 8C-1, Rule 404(b) as evidence of motive, opportunity, intent, preparation, plan, etc. A-E felony adjudications are likewise admissible to prove aggravating factors. See 7B-3000(f). Issues with admissibility of adjudications for purposes of proving aggravating factors may likewise apply in Federal court for sentencing purposes. Counsel should also note that N.C.G.S. 7B-2102 requires fingerprinting of juvenile adjudicated of felonies and transmittal of those fingerprints to the SBI and FBI. Fingerprints are not eligible for expunction. Even for granted expunctions, N.C.G.S. 7B-3201(b) may allow a court to order testimony regarding prior adjudications if the client chooses to testify as a defendant or is called as a witness. See also State v. Baker, 312 N.C. 34; 320 S.E.2d 670 (1984).
3. Educational Consequences
N.C.G.S. 7B-3101 requires the juvenile court counselor to make written notification to the juvenile’s school principal when a juvenile petition alleges a felony, when a case is transferred to Superior Court, and when a disposition order is entered requiring school attendance. If the juvenile transfers to another school, the same notification must be made to the new school. While N.C.G.S. 115C-404 specifically states that this information “shall not be the sole basis for a decision to suspend or expel a student”, the information can be used to make decisions “to protect the safety of or to improve the education opportunities for the student or others.” As a result, the juvenile’s class placement, decisions to place students on homebound or other virtual or alternative school programs could be impacted by the filing of a petition. School sanctioned activities such as sports, band and ROTC may be impacted as well. The North Carolina High School Athletic Association prohibits[EZ1] [JTA2] participation in sports of juveniles in middle and high school adjudicated of a felony. The ban lasts until graduation. Recent cases in certain jurisdictions have led to issues with participation in band and ROTC as well. ROTC programs follow a chain of command procedure and students could be removed from ROTC completely or be stripped of promotions and awards within the program. All these issues can have an impact on scholarships, college grants and college acceptance. There may be additional consequences for financial aid in the form of federal grants for juveniles adjudicated of felonies.
4. Employment/Military Consequences
Most applications ask questions about “convictions.” However, some do ask about prior arrests or charges. Employers may be able to obtain information about juvenile arrests or charges through school records if the incident occurred on school grounds and a behavior report is generated separate and apart from law enforcement reports. Juveniles who do not explore expunction may have difficulty in exploring later employment in law enforcement, social work or other areas where background checks may be more extensive.
The military (all branches) has a “moral fitness” requirement. All branches of the military require disclosure of juvenile adjudications, sealed records and expunctions. Recruiters for multiple branches indicate the ability to locate expunctions for up to 7 years prior. Recruits are subject to extensive questioning and investigation at Military Entrance Processing Stations (MEPS). A waiver may be obtained for enlistment for some offenses (mainly misdemeanors) but promotions within the military may still be affected[EZ3] and a waiver is not guaranteed to be granted. A felony adjudication is likely to be a bar to acceptance into any branch of the military. Failure to disclose juvenile adjudications or other records such as juvenile arrests may result in disciplinary action including discharge from the military or military court proceedings. Juveniles should be advised to provide truthful information during the enlistment process. Under the Uniform Code of Military Justice (UCMJ-10 U.S.C. 883, Article 83), it is a felony to make a false representation or to deliberately conceal information at the time of enlistment and fraudulent enlistment is punishable by dishonorable discharge, administrative separation, reduction in rank, forfeiture of pay and allowances and/or confinement for up to two years.
5. Other Consequences
Counsel should advise clients appropriately involving other potential consequences of adjudication including housing and immigration consequences. Federal law bans outright three categories of people from admission to public housing: those who have been convicted of methamphetamine production on the premises of federally funded housing, who are banned for life; those subject to lifetime registration requirements under state sex offender registration programs; and people who are currently using illegal drugs, regardless of whether they have been convicted of any drug-related offense.
Public Housing Authorities have the discretion to deny admission to three additional categories of applicants: (1) those who have been evicted from public housing because of drug-related criminal activity for a period of three years following eviction; (2) those who have in the past engaged in a pattern of disruptive alcohol consumption or illegal drug use, regardless of how long ago such conduct occurred; and, (3) the catch-all category of those who have engaged in any drug-related criminal activity, any violent criminal activity, or any other criminal activity, if the Public Housing Authority deems them a safety risk. Criminal activity or activity that threatens the health or safety of others or illegal drug activity could be grounds to evict an entire family from public housing regardless of whether an adjudication occurs[EZ4] .
Juvenile adjudications may pose immigration consequences such as the inability to file family-based petitions. Questions regarding immigration consequences should be referred to immigration attorneys if the defender is not familiar with immigration laws.
For additional information or questions regarding collateral consequences of juvenile court, please visit the OJD website at https://www.ncjuveniledefender.com or contact the office at 919-890-1650.