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Jennifer Crissman, Attorney, Woodruff Family Law GroupJAC

In the final installment of our twelve-part practical series for attorneys practicing in Guilford and surrounding counties, we will review the case of State v. Deanes. In our hypothetical situation from Part 1, there were multiple hearsay statements made by the children to various family members, social workers, medical practitioners and detectives. While we have covered the prime hearsay exceptions to have these statements admitted, there is always the possibility that the court will not allow the hearsay in under the already enumerated exceptions. If this happens, the best alternative is to use Hearsay Exceptions Rule 803(24) – “Other Exceptions.” The court in Deanes gives us a broad overview of “other exception where there is inherent trustworthiness” under Rule 803(24), and the proper procedure to utilize this hearsay exception. State v. Deanes, 323 N.C. 508, 374 S.E.2d 249 (1988).

In the case of State v. Deanes, the child victim was a five-year-old girl who was raped by a friend of her mother. The child woke her mother the night of the attack and told her about the assault. The next day the mother confronted the alleged assailant, but took no further action when the assailant denied the attack. Simultaneously the Department of Social Services received an anonymous report that the child was raped. As a result of this report, a social worker became involved in the case. The social worker went to the child’s home, met with the child and the child told the worker about the rape. The social worker arranged for the child and mother to meet with a pediatrician the following day for the child to have a medical exam. At the medical exam, the child was nervous, and the social worker was called in to talk to the child and calm her down. Following the medical exam, the social worker interviewed the child at the social worker’s office with anatomically correct dolls and the child demonstrated what had occurred with the dolls. At trial, the social worker testified about statements the child made to her at the initial interview, at the pediatrician’s office, and at the social worker’s office. On appeal, the Defendant contended that the social worker’s testimony regarding the hearsay statements was improperly admitted under Rule 803(24).

The court in Deanes outlines the six steps the trial court must consider to admit the hearsay statement under Rule 803(24). The order of the steps are: 1) Was proper notice given, 2) Is the hearsay specifically not covered elsewhere, 3) Is the statement trustworthy, 4) Is the statement material, 5) Is the statement more probative on the issue that any other evidence which the proponent can procure through reasonable efforts, and 6) Will the interests of justice be best served by admission. Id. at 255.

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By Sarah Andrew, Blog Writer, Woodruff Family Law Group

s.andrew headshotWhen I think of Friendsgiving, I think of my first attempt at baking pumpkin muffins. I remember my joy at having an excuse to try out my roommate’s fancy stand mixer, my panic at using so much butter at once, the brisk three-block walk to my friend’s apartment, in ill-advised boots, with the warm bowl nestled between my gloves. Steam rising from homemade food is such a cozy thing, even when you’re not jaunting about in the cold.

Maybe you’re feeling more cold than cozy this year. It’s the first major holiday since your divorce, or it’s your ex’s turn to celebrate Thanksgiving with the kids. You could visit your parents and extended family, but you have a news feed’s worth of evidence that dinner will devolve into a political knock-down-drag-out before you can even request the salt. Here’s the beautiful thing about Friendsgiving: Friends. Sanity. Casual, low-stakes discourse over a meal everyone makes together, in one kitchen or in several. If someone gets too mouthy, you can kick him out without worrying that you’ll be left out of the will.

So how do you plan for the ideal Friendsgiving?

First, start a group chat with a few people in your same—or a similar—boat. Suggest a menu with the basics, from the bird to veggies to dessert, and let everyone choose what they’d like to contribute. Maybe everyone wants to cook together at your place. Maybe they’ll cook at home and carry their dishes over. Maybe they’ll secretly buy a pie from Harris Teeter and transfer it to their great-grandmother’s china. Great! If you tend to be a perfectionist, stop and take a deep breath. It’s okay if every item isn’t vegan and gluten-free. Make sure people are aware of potential allergens—and you eliminate cross-contamination by shared utensils— and they’ll eat what they can eat, until they physically can’t anymore.

Have games and icebreakers ready. Perhaps you’re lucky enough that the members of your various social circles already know each other. Even if that’s the case, who doesn’t love games? Go around and let people share their favorite Thanksgiving memory, or funniest-in-retrospect Thanksgiving argument. Have a few games at your disposal, too: Trivial Pursuit, Last Word, and of course Apples to Apples are always popular choices. Continue reading →

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Jennifer Crissman, Attorney, Woodruff Family Law Group

JACIn this installment of our series for family law practitioners in Guilford and surrounding counties, we will discuss the case of State v. Burgess. In our hypothetical scenario, the two children made statements to their grandmother about the abuse by their uncle. Although the timing and circumstances surrounding the statements were not discussed, the statements could qualify for admission under the hearsay exception of excited utterances, Rule 803(2). The case of Burgess provides very clear guidance on this hearsay exception. State v. Burgess, 639 S.E.2d 68, 181 N.C.App. 27 (2007).

In Burgess, the child victim was sexually abused by her uncle. One evening the child was playing with her dolls and was placing the dolls in sexually suggestive positions. When the child’s mother saw this, she yelled at the child to stop playing with the dolls in that way. The following morning the mother asked the child if anyone had been touching her privates. The child told her mother that her uncle had been in her room the previous night, had touched her privates and that he scared her. The trial court allowed the statements made to the mother into evidence under Rule 803(2), the excited utterances hearsay exception, over the objections of Defendant.

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Jennifer Crissman, Attorney, Woodruff Family Law GroupJAC

In part 10 of our practical series for family law attorneys practicing in the Piedmont Triad, we will review the case Matter of Lucas which provides guidance on hearsay statements made to physicians regarding sexual abuse. In our scenario in part 1 of the series, the two children told their grandmother about the incident, which in turn led to the children being seen by a doctor. In the visit with the doctor, the children made statements about the abuse. One of the grounds opposing counsel may bring up is that a physician did not treat the children, but merely examined them to gather evidence for any criminal investigation stemming from the abuse allegations. The case of Matter of Lucas is directly relevant. Matter of Lucas, 380 S.E.2d 563 (N.C. App. 1989).

In the case of Lucas, the young child victim was sexually assaulted by a juvenile. The child victim told the mother about the assault within several days, and within fourteen days of the incident, at the suggestion of a Sergeant working on the case, the mother took the child victim to the local hospital, and later for a follow-up appointment with another physician. The juvenile argued that the child victim’s statements to the physician were not made for the purpose of receiving medical treatment, but were made for the purpose of preparing for prosecution, based on the fact that the doctor never treated the child victim.

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Jennifer Crissman, Attorney, Woodruff Family Law GroupJAC

            Part 9 of our continuing series for family law attorneys practicing in Guilford and surrounding counties focuses on the admission of hearsay from social workers and the Department of Social Services. When there is a case that has allegations of abuse, there will likely be intervention from the Department of Social Services at some point. As in our scenario, there usually will be an initial investigator, and at some point, the case will be assigned to another worker for follow up after the initial investigation. By the time that the case goes to hearing, there can be multiple workers who have interacted with the family and touched the case. The prospect of getting not just one, but multiple social workers with heavy caseloads in to court to testify is a daunting task to say the least. This segment will review the case of In re C.R.B., and the admission of DSS records authored by multiple social workers. In re C.R.B., 781 S.E.2d 846 (N.C. App. 2016)

The case of In re C.R.B. involves the termination of parental rights. One of the children in this case was discovered unattended in a car. During an assessment by the Department of Social Services it was discovered that the mother suffered from substance dependence, multiple debilitating mental illnesses, and intellectual disabilities. As a result of these issues the mother was unable to provide proper care for the children, and mother consented to an order adjudicating the children as neglected. The children were placed in foster care, and mother signed a case plan designed to address her issues, which included mental health, substance abuse and intellectual disability. The mother attended all meetings with DSS and completed some goals contained in her case plan, but did not complete the substance abuse assessment required by the case plan. As a result, her visitation with the children was suspended, and ultimately the permanent plan was changed from reunification to adoption.

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Jennifer Crissman, Attorney, Woodruff Family Law Group

JACIn this part of our continuing practical series, we will address the issues family law attorneys face when trying to admit DSS records and social worker’s testimony into evidence in Guilford and surrounding counties. Matter of Smith is a particularly useful case for when the child has made statements to one social worker, but that worker is not available to testify on the day of the hearing. As most attorneys who have needed a social worker’s testimony can attest, these are very busy people with important jobs. It is hard to get a social worker in court as they are usually dashing from one case to the next. Also, the social worker who initially receives the case may not keep the case in the long run. This is where the holdings of Smith can be applied.

The case of Matter of Smith is a termination of parental rights case. Matter of Smith, 287 S.E.2d 440, 56 N.C. App. 142 (1970). The children in Smith were removed from the mother’s care due to neglect and were placed in foster care system nearly ten years before the petition for termination of parental rights being filed. Within that almost ten-year time span, DSS provided services to the mother. However, the mother failed to maintain contact with the children and did not make sufficient progress towards correcting the conditions that initially led to the children’s removal. As a result of the mother’s lack of action, the Department of Social Services filed the Petition for Termination of Parental Rights.

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s.andrew headshotBy Sarah Andrew, Blog Writer, Woodruff Family Law Group

Everyone knows that the best thing about Halloween—besides the mountain of free candy—is the opportunity to transform, at least for the night, into a superhero or a Disney princess or a delightfully spooky creature. (Or, if your parents are at all like mine, into one-half of old-timey comedy duo Laurel and Hardy, with a bowler hat, a fake mustache, and a pillow stuffed under your button-down.) With the exception of nine-year-old me, who wasn’t thrilled to traipse through her Greensboro neighborhood as a middle-aged man, most kids would jump at a second chance to wear their costumes and celebrate all over again.

But what if you’re the parent whose custody begins a day or two after trick-or-treating ends? Ringing doorbells after November 1 is more likely to lead to dark porch lights and raised eyebrows than to another heaping bucketful of chocolate, and most community events are limited to Halloween itself. Here are some ideas for conjuring up a little ghoulish magic on other nights of the year.

Roll up your sleeves. Everyone’s favorite candy is about to go on sale, so stock up on as many variety packs as you can carry. Fun-size chocolate bars are perfect for baking into cupcakes, or for simply popping back while you wait for the timer to go off. If you don’t trust your kids—or yourself—around an oven, you can opt for a perennial favorite: dirt cups. What’s more fun than crushing a bag of Oreos with a rolling pin? If you’re feeling adventurous, make a full-sized dirt pie. And, of course, try to trick everyone into eating at least a little something healthy by insisting that the peeled grapes are actually eyeballs.

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Child's face

Third-party rights to custody and visitation can be contentious and complicated. Our seasoned North Carolina child custody attorneys routinely work with families to resolve custody and visitation matters. At the Woodruff Family Law Group, we have years of experience and understand the nuances of this area of law.

Under North Carolina law, there is a preference for natural and adoptive parents. A biological or adoptive parent has a constitutional right to take care of the child. This includes custody and control of the child. Third parties cannot interfere with this right unless they show that a parent is unfit to care for the child, has been negligent, or has otherwise acted in a manner inconsistent with his or her protected status as a parent.

This rule was created through the case of Price v. Howard. In that case, the plaintiff (the father) and the defendant (the mother) were living together when the child was born. Some time later, the couple separated, and the child remained with the plaintiff. When the child was six years old, the defendant sought custody of the child, but the plaintiff refused. The plaintiff then filed a custody action against the defendant. In her answer, the defendant claimed that the plaintiff was not actually the biological father of the child. DNA tests confirmed that the plaintiff was not the father, and the mother was awarded custody of the child.

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Father-ChildWhile many custody disagreements involve grandparents, there are third parties who may also want custody of a couple’s children. Custody disputes can be extremely contentious and emotionally charged. At the Woodruff Family Law Group, our compassionate child custody lawyers understand the stakes are high, which is why we will zealously advocate for your rights.

In Ellison v. Ramos, a father’s former romantic interest sued him for custody of his diabetic daughter. The father and the woman were in a relationship and resided together for some time, during which the woman acted like a mother to the child. She alleged that during her relationship with the father, she was the one who cared for the child. Even after the father and she broke up, the child lived with her exclusively for almost 12 months. The father eventually took the child to Puerto Rico to live with the child’s paternal grandparents, even though they were not equipped to deal with the child’s special needs.

The child stated that the woman was the responsible “parent” when it came to her care. The child also confirmed that the woman indeed took the child to her medical appointments, bought her clothes and school supplies, and took her to school, as well as attended parent-teacher conferences. In addition, the woman provided in-home care to the child and made sure she was receiving proper care for her condition.

The woman sought the return of the child from Puerto Rico to the United States. The trial court determined that she did not have standing and dismissed the lawsuit. She appealed.

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Jennifer Crissman, Attorney, Woodruff Family Law GroupJAC

           For the next several installments of our practical series for family law attorneys in Piedmont Triad area, we will be reviewing the admission of hearsay statements through the business records exception, Rule 803(6). In this installment, we will consider the case of In re S.W., 625 S.E. 2d 594 (N.C. App. 2006).

We have all been there; you sent out the subpoenas to the doctor, the nurse, the social worker, the therapist, the detective, and anyone else you can think of who can testify about the abuse. Lo and behold on the day of the hearing, not a single witness shows up, but luckily you have already got your hands on some records that detail the incident. What is the attorney to do? The case of In re S.W. is extremely helpful when an attorney is unable to get a witness into court, and there are written records of the events.

In re S.W. involves a termination of parental rights case and the admission of various exhibits which contained hearsay statements.  The child, in this case, was initially removed from the mother’s custody after being found out in the rain while the mother was buying illegal narcotics in October of 2001. The child was determined to be neglected but was reunified with the mother. The mother then left the child unattended at the homeless shelter where they were both staying for over a day and a half on Christmas Eve. The Department of Social Services removed the child again from the mother’s custody, and the child was placed in foster care. The Department of Social Services then filed their Petition to Terminate Parental Rights of the mother in 2003 as the mother had failed to maintain regular contact with DSS, failed to maintain stable living arrangements, failed to attend drug treatment regularly and had only visited with the child three times in 2003.

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