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Proposed 2014 Formal Ethics Opinion 11: Notice to Parents Seeking Nonsecure Custody Order

Photo Courtesy of the North Carolina State Bar

View the Proposed Ethics Opinion in Full Here

Editor’s Note: At its meeting on July 17, 2015, the Ethics Committee voted to withdraw this opinion without substitution in light of recently adopted legislation that resolves the issue of professional responsibility raised in the proposed opinion.

Proposed Ethics Opinion 2014 FEO 11, republished at the NC Bar’s April meeting, rules that a Department of Social Services (DSS) attorney must follow legal notice requirements when filing a petition where he or she alleges abuse, neglect, or dependency of a child and must comply with Rule 3.5, regarding ex parte motions for non-secure custody.  The facts of the inquiry revolve around cases when immediate removal of a child is deemed necessary and the DSS attorney is seeking to obtain a non-secure custody order to remove the child.

In such a situation, the petition alleging abuse, neglect, or dependency must be filed prior to the request for a non-secure custody order.  Once the petition is filed, the respondent parents are appointed provisional counsel by the clerk of court who remain appointed to each parent until that parent retains their own attorney or they waive their right to counsel, as per N.C. Gen. Stat. § 7B-602 (2013).

If non-secure custody is needed for more than seven (7) days, there must be a hearing within that time.  Non-secure custody is granted when there is a reasonable factual basis to believe the matters alleged in the petition are true, and any of the following apply: (1) the juvenile has been abandoned; (2) the juvenile has suffered physical injury or sexual abuse; (3) the juvenile is exposed to a substantial risk of physical injury or sexual abuse because the parent, guardian, custodian, or caretaker has created the conditions likely to cause injury or abuse or has failed to provide, or is unable to provide, adequate supervision or protection; (4) the juvenile is in need of medical treatment to cure, alleviate, or prevent suffering serious physical harm which may result in death, disfigurement, or substantial impairment of bodily functions, and the juvenile’s parent, guardian, custodian, or caretaker is unwilling or unable to provide or consent to the medical treatment; (5) the parent, guardian, custodian, or caretaker consents to the non-secure custody order; or (6) the juvenile is a runaway and consents to non-secure custody. N.C. Gen. Stat. § 7B-503 (2011).

An attorney in such a situation is required to give notice or service prior to or at the time of filing the petition alleging abuse, neglect, or dependency.  Rule 3.5 prohibits ex parte communication with a judge unless certain situations are present.  The same rule applies when filing a motion for non-secure custody of a child based on abuse, neglect, or dependency in that a lawyer shall not communicate ex parte with a judge or other official except in the course of official proceedings, in writing, if a copy is furnished at the same time to the opposing party either orally or upon adequate notice to the opposing party.

Regan Gatlin, Ethics Editor
About Regan Gatlin, Ethics Editor (42 Articles)
Regan Gatlin is a 2016 graduate and served as the Ethics Editor for the Campbell Law Observer for the 2015-2016 academic year. Regan graduated from North Carolina State University in 2013 with a Bachelor of Arts in Political Science and a minor in Sociology. Regan has previously clerked for the Insurance Section of the North Carolina Department of Justice, The General Counsel of The Select Group, and Safran Law Offices. During her experiences clerking, she gained civil litigation and research experience in the areas of insurance, construction law, labor and employment, and compliance. She also competed on a Campbell Law Trial Team in the Buffalo-Niagara Mock Trial Competition and the American Association for Justice (AAJ) Mock Trial Competition. Regan is from Smithfield, North Carolina.
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