There are a few common ways our kids end up being held illegally. As their advocates, we need to focus on ways to try to prevent this from happening, and what to do when it comes to our attention that it has happened.
In this blog post, I will discuss what to do when children are illegally confined as an improper use of their intermittent confinement days. N.C. Gen. Stat. § 7B-2506 (12) authorizes a judge to impose up to 5 intermittent confinement days for a child placed on a level 1 disposition and N.C. Gen. Stat. § 7B-2506 (20) authorizes a judge to impose up to 14 intermittent confinement days for child placed on a level 2 disposition. Both of these statutes specify that “the timing of which is determined by the court in its discretion.”
Often, these days are included as a part of the initial order, but stayed while the child is under various terms of probation. We, the child’s lawyer, then close the file and file our fee applications. We tell the child to contact us if they have questions, but unless an MFR is filed, we typically do not hear anything more about the case.
In other cases, judges will explicitly authorize the court counselor to use some or all of the stayed days upon “noncompliance” or a particular type of violation.
In either case, in some jurisdictions, court counselors will approach a judge with a secured custody order to utilize some or all of these stayed days for noncompliance issues. The child is then picked up, and serves their days. When they are released, they continue on probation.
Because the child has not been brought in on an MFR, there is no due process and no appointment/reappointment of a lawyer. So this happens in a way that we typically are completely unaware that it is happening.
In re Hartsock provides that the judge cannot delegate her authority to court counselor to determine if certain dispositional alternatives are appropriate. 158 N.C.App. 287, S.E.2d 395 (2003). By authorizing the court counselor to impose stayed intermittent confinement days, there is an impermissible delegation of authority. Additionally, when the imposition of these days is for an alleged incident(s) of noncompliance with the probation order, there are due process requirements of notice (an MFR) and a hearing, as well as the (re)appointment of a lawyer.
If we find out this has happened, it is usually if we see the secured custody order in the file after being appointed on new charges or an MFR at a later date. At that point, the child is no longer in custody, and there is no proper recourse for a juvenile defender to take.
So, what do we do? I have a couple suggestions. The first is proactive. When you are at disposition for a child and the judge indicates she will include stayed intermittent confinement days as part of the order, ask for there to be language that specifies that the days cannot be imposed unless the child is brought back in front of the judge on an MFR. Cite Hartsock when making this request. I have had success with some judges in getting this language into the original order. This makes it clear to the court counselor and any judge the court counselor may approach with a secured custody order that the days cannot be imposed without the proper due process proceedings.
If the judge refuses to include this language, consider appealing. Appeals can (and often should) be made on dispositional issues even if the child took a plea. Once disposition has been entered, you have 10 days to appeal. If the 10 days expires, and the child is later confined illegally in a manner in which you are not aware until the confinement has ended, there is no legal recourse in the delinquency venue.
What if you learn about the illegal confinement while the child is still locked up? You can file a writ of habeas corpus. Since this is a complicated procedure, I will not go into details on how to do this in this blog post. Contact OJD and/or the Appellate Defender’s Office for assistance if this happens.
On a systemic level, I would encourage all juvenile defenders to review the court files of their clients to see if this is occurring in your counties. If it is a regular occurrence, consider speaking with the court counselors, DAs and/or judges about the practice.
If this is something that is happening regularly in your counties and none of these strategies seem to be working, raise the alarm. Contact OJD, so they can be aware of how widespread the problem is. And do not stop objecting to this practice!
Kellie Mannette (http://mannettelawfirm.com/) is a private attorney practicing in Orange, Durham and Chatham counties who specializes in criminal and juvenile defense. An alumnus of the UNC Youth Justice Clinic program, Kellie has returned twice to teach at the Clinic.