Articles Posted in Lawyer to Lawyer

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

Winston Salem, North Carolina: Malecek v. Williams (2017)

Derek Williams is a Forsyth County doctor who had an affair apparently, or at least allegedly, with his nurse. Playing doctor-nurse games got them in trouble with the nurse’s husband, Marc Malecek. The nurse’s then-husband Marc sued Derek for alienation of affection and criminal conversation.

What is alienation of affection? This heart balm tort is something like an automobile accident where a marriage is rear-ended. This alienation of affection requires a spouse to prove that he or she had a genuine marital relationship and that marriage relationship was interfered with by a third party paramour, causing damages. What is criminal conversation? That is simpler. That is sex with someone’s spouse creating damages. Frequently the damages might be one dollar, which is required to reward if sex is found with someone else’s spouse. Of course, in North Carolina damages for alienation of affection and criminal conversation has been as much as $30 million.

Interestingly enough, Derek Williams was sued by Marc Malecek in May of 2016. The Honorable Todd Burke dismissed the lawsuit indicating that alienation of affection and criminal conversation were unconstitutional. There had been several other cases wherein judges had found or not found alienation of affection and criminal conversation to be unconstitutional.

For now, the North Carolina Court of Appeals has spoken on the constitutionality of alienation of affection and criminal conversation. These heart balm torts are constitutional, according to Court of Appeals Judge Richard Deitz. Continue reading →

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Whether you are the Plaintiff filing a lawsuit or the Defendant being served with one, one of the most important things for a family law attorney in Greensboro and across the state to keep in mind are deadlines imposed by rules and statutes in North Carolina.  Rule 6 of the North Carolina Rules of Civil Procedure sets the guidelines as to how we compute time in North Carolina.

In computing any period of time in a lawsuit, the day of the act that begins the running of the time period is not included.  For example, when you are served a summons and complaint for divorce, you have thirty days to respond.  If you are served on May 1st, the thirty days would not start until May 2nd, the day following the act that started the running of the time period.

The last day of a time period is typically included. However, if it is a Saturday, Sunday, or a legal holiday when the Courthouse is closed, it is not.  So if your period of time to respond to a complaint is set to expire on July 4th, you don’t have to leave your cookout to file your answer.  The period to answer would be extended until July 5th, or the next business day when the Courthouse is open.

If you need more time to respond to a pleading or other paper that you have been served, you can request that the Court grant an extension to your deadline. This is typically accomplished by filing a Motion for Extension of Time with the Clerk of Court, and it can be done at any time before the deadline expires. This allows the deadline to be extended for thirty additional days.  These extensions are typically granted freely as long as they are timely filed with the Clerk of Court. Continue reading →

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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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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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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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JACJennifer Crissman, Attorney, Woodruff Family Law Group

In this part of our series we are reviewing a case that is unpublished, but extremely helpful for family law attorneys practicing in Guilford and surrounding counties presenting testimony by professionals from a Children’s Advocacy Center.

For those who are not familiar with Children’s Advocacy Centers, these facilities are designed to be a one stop location to assist children who are victims of physical, emotional and sexual abuse. Most facilities implement a multi-disciplinary team approach, meaning that typically there will be representatives from law enforcement, medical, child protective services, mental health, victim advocacy and children’s advocacy center on the team. The rationale is that by consolidating all services in one location this will reduce the trauma to victims, as they will not be forced to repeat their story over and over to different agencies. In North Carolina there are 30 accredited Child Advocacy Centers and 8 Provisionally Accredited Centers.

The case of State v. Aviles is useful as it deals specifically with the admission of hearsay statements made to members of the multi-disciplinary team by a young child. State v. Aviles, No. COA12-698 (N.C. App. 2013). In Aviles the child victim was a 5 year old who told her mother about the sexual abuse. The mother then took the child to the hospital where the child was seen by a nurse practitioner. The nurse practitioner then referred the child to a Children’s Advocacy Center for interviews and treatment. At the Center the child was first interviewed by a licensed social worker, during which the interview was taped, and then the child was given a physical examination by a pediatric nurse practitioner. The video of the child’s interview with the social worker was admitted under Rule 803(4) statements made for purposes of medical diagnosis or treatment, over Defendant’s objections.

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Jennifer Crissman, Attorney, Woodruff Family Law GroupJAC

In Part 5 of our series, we look at admitting hearsay statements made to social workers. It is common in cases involving allegations of abuse that a social worker will be involved at some point, whether the social worker conducts the initial interview, or they are brought in after there has been police involvement. Often the social worker will speak individually with the child and will have vital hearsay statements from the child that need to be admitted. A particularly helpful case on this point is State v. Crumbley, 519 S.E.2d 94, 135 N.C. App. 59 (1999).

In Crumbley, Social Services was contacted after the minor child’s aunt reported suspected sexual abuse to the local police department. An emergency investigator with the Department of Social Services went to the home and spoke with the minor child, who was age 7. Based on the investigator’s interview with the child it was determined that the child should be removed from the home and the case was referred to a social worker with Child Protective Services the same day. The social worker met with the child the same day and determined the child needed medical treatment. The child could not be seen by a child sexual abuse specialist for another eight days, so the child saw a pediatrician prior to the appointment with the specialist. The Defendant in Crumbley objected to the hearsay statements made to the emergency investigator and social worker being admitted.

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