June 2011 Volume 43 Issue 6 - ncjj.org 2011 Volume 43 Issue 6 ... a person commits the offense of...

June 2011 Volume 43 Issue 6

interesting legislation in the field of domestic violence

Recently several states have enacted interesting legislation in the field of domestic violence.

For example, effective June 17, 2011, Texas established the Task Force to Address the Relationship Between Domestic Violence and Child Abuse and Neglect. This task force is established to examine the relationship between family violence and child abuse and neglect, develop policy recommendations, if needed, to address issues and effects resulting from that relationship, and develop comprehensive statewide best practices guidelines for both child protective services and family violence shelter centers.

(2011 Texas Session Law Service Chapter 608 (S.B. 434))

Arkansas added an affirmative defense to a prosecution for violating an order of protection. Under the new Arkansas law, it is an affirmative defense to a prosecution under this section if the petitioner for the order of protection invited the defendant to come to the petitioner’s residence or place of employment listed in the order of protection; and knew that the defendant’s presence at the petitioner’s residence or place of employment would be in violation of the order of protection.

(2011 Arkansas Laws Act 810 (S.B. 1000); approved 03-30-2011.)

Effective July 1, 2011, Hawaii enacted the Protect Victims of Domestic Violence Act. Under the terms of the Act, a person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of a person from whom the defendant has been restrained, by order of any court, including an ex parte order, from contacting, threatening, or physically abusing.

(2011 Hawaii Laws Act 63 (H.B. 1003))

In This Issue:

Page 2 delinquencyassistance of counselnebraska court of appeals2011

Page 8 miranda warningageunited states supreme court2011

4parent/child de facto parent delaware family court 2010

Page 19search and seizure schools indiana court of appeals 2011

Page 21support right to counsel united states supreme court 2011

2 june 2011 / Juvenile and Family Law Digest

Justin V. appeals from an order of the separate juvenile court of Lancaster County denying his request to withdraw his initial admission to a charge of criminal mischief. Justin asserts that he did not make a knowing waiver of his right to counsel and that he had a fair and just reason for withdrawing his admission to the charge in this case.

Because the juvenile court did not abuse its discretion in determining that Justin’s waiver of counsel was knowing, voluntary, and intelligent or in denying Justin’s motion to withdraw his admission, the Nebraska Court of Appeals affirms.

On July 10, 2009, the State filed a petition in the juvenile court, charging Justin with criminal mischief. Specifically, the State alleged that Justin had intentionally or maliciously damaged property belonging to a particular entity, causing a pecuniary loss of more than $200 but less than $500.

On August 13, 2009, Justin, then 17 years old, appeared before the juvenile court on the criminal mischief charge. His mother was present with him at the hearing. The court began by asking Justin if he had received a copy of the charge and understood what the charge was. Justin confirmed that a copy had been sent to him and that he knew what the charge was.

Next, the juvenile court explained Justin’s various rights. The court explained Justin’s right to be represented by an attorney during the course of the proceedings. The court informed Justin that he could hire and consult with a private attorney; that if his family could not afford an attorney, Justin could request an attorney and the court would appoint one at no cost; or that Justin could waive this right and proceed without an attorney. The court then explained Justin’s right to a speedy adjudication hearing, the State’s burden of proof, and Justin’s right to cross-examine witnesses. At this point, the court asked Justin if he had any questions, and Justin replied that he did not.

The juvenile court also explained Justin’s right to testify, to put on his own defense, and to remain silent. The court again informed Justin that the State, rather than Justin, had the burden of proof with respect to the charge. The court warned Justin that if he chose to say something during the hearing, it could be used by the State against him. The court clarified by stating that if Justin said something in court about the charge that he had not previously said, he was “stuck with it.” The court then explained that Justin had the right to a prompt or quick hearing.

DELINQUENCYAssistance of Counsel

state v. justin v.---n.w.2d--- (neb. 2011)

nebraska court of appeals

The court told Justin that if he were placed at a juvenile detention center, he would have the right to request a hearing at any time to determine if he could be released to return home. The court also explained Justin’s right to appeal the court’s decisions.

The court then asked Justin if he understood his rights and whether he had any questions. Justin indicated that he understood his rights and did not have any questions.

Next, the juvenile court explained the potential consequences if Justin admitted to the charge or the State proved that it was true at trial. The court told Justin that he could be placed on probation or with the Department of Health and Human Services, Office of Juvenile Services, and that there would be specific terms and conditions he would have to follow as part of either option. With regard to placement, the court explained that it could allow Justin to remain with his family, but that if the court determined at some point that it was necessary and in Justin’s best interests, the court had the option to consider various out-of-home placements and even to consider placement at the Youth Rehabilitation and Treatment Center in Kearney, Nebraska. The court told Justin that it would need to find out more information about him before determining the best option.

The court further explained the possible terms and conditions that Justin might have to follow if the charge were found to be true, such as paying restitution or performing community service.

The court also informed Justin that the longest amount of time the case could remain pending would be until Justin turned 19, but that the case could end sooner if the court determined that Justin did not need to be under the court’s jurisdiction that long. The court told Justin that if the charge were found not to be true, it would be dismissed.

The court asked Justin if he understood what could happen if the court found the charge to be true and whether he had any questions. Justin replied that he understood what could happen and that he did not have any questions.

The court inquired whether Justin’s mother understood Justin’s rights and potential consequences and whether she had any questions. Justin’s mother replied that she understood and that she did not have any questions.

The juvenile court then further discussed Justin’s right to an attorney. The court again explained that Justin could hire a private attorney, have a court-appointed attorney if the family could not afford one, or choose to proceed without an attorney. The court asked if Justin understood and if he had any questions. Justin responded that he understood and did not have any questions. The court asked Justin if he knew what he wanted to do about an attorney or if he wanted to talk to his mother before letting the court know his decision. The court advised Justin that the decision to proceed without an attorney was his to make and asked if he understood or had

june 2011 / Juvenile and Family Law Digest 3Juvenile and Family Law Digest / june 2011

questions. Justin indicated that he understood and did not have any questions. He again informed the court that he wanted to proceed without an attorney.

In response to the next series of questions from the court, Justin informed the court that no one had forced him to give up his right to an attorney or threatened him to persuade him to do so and that he was doing so of his own free will and as his own voluntary act. Justin’s mother confirmed for the court that she agreed with Justin’s decision to waive his right to an attorney. The court then found that Justin had waived his right to an attorney freely, voluntarily, and intelligently.

After Justin’s admission of the charge, he informed the court of his age and the court proceeded to question him further about the admission. In response to this questioning, Justin told the court that he admitted and understood the charge, that his admission was made of his own free will and was his own voluntary act, that no one had forced him to admit the charge or threatened him to persuade him to do so, that no one had made him any promises in exchange for his admission, and that he was not under the influence of any drugs or alcohol.

Justin also told the court that he understood that there would not be a trial; that no witnesses would testify or evidence be presented by the State to prove the charge; that he was giving up his right to see, hear, and cross-examine such witnesses; that he was giving up the right to testify, put on a defense, or bring his own witnesses; and that he was giving up his right to remain silent.

The case was set for a dispositional hearing on September 29, 2009. The case was continued, and on October 29, the juvenile court placed Justin in the juvenile detention center for allegations that he violated his conditional release. On November 3, the court held a detention hearing and authorized Justin to be released to the custody of his mother and appointed an attorney for Justin.

On January 13, 2010, Justin was accepted into drug court. On January 20, an order for immediate custody was issued because Justin falsified a urine test by switching his urine with someone else’s. Justin used marijuana on January 27, the day he was released from the juvenile detention center. Justin was released to attend residential treatment on February 16, but he was “kicked out” 8 days later for unruly, threatening, and intimidating behavior.

On April 2, 2010, Justin appeared in court with his mother, stepfather, and attorney for his disposition hearing. Justin’s attorney made an oral motion, asking that Justin be allowed to withdraw his plea and that the matter be set for an evidentiary hearing. The juvenile court continued the hearing to give Justin an opportunity to present evidence on the motion.

Justin testified at the April 12, 2010, hearing. He stated that his admission was voluntary; however, he testified that he did not

believe he entered his plea knowingly because it was his first time in court and he did not really understand what the judge was saying.

The hearing on Justin’s motion to set aside his plea resumed on May 6, 2010, and a dispositional hearing was also held. One of the other juveniles involved in the rock-throwing incident testified that the third juvenile was the one who threw the rock that broke the window and that Justin never picked up a rock.

After reviewing the evidence on Justin’s motion, the juvenile court determined that it had clearly explained Justin’s rights to him at the time of the August 2009 hearing in accordance with statutory requirements. The court observed that Justin had been appointed an attorney in November 2009 and that in the intervening 5 months, he did not make a request to set aside his admission.

The court noted that Justin had numerous hearings in drug court and that it was not until he was removed from drug court and the matter was set for disposition in the juvenile

Did You Know?

In Nebraska, the circumstances considered in a totality of the circumstances analysis of a juvenile’s waiver of counsel include: the age, intelligence, and education of the juvenile; the juvenile’s background and experience generally, and more specifically, in the court system; the presence of the juvenile’s parents; the language used by the court in describing the juvenile’s rights; the juvenile’s conduct; the juvenile’s emotional stability; and the intricacy of the offense.

Where a juvenile waives his or her right to counsel, the burden lies with the State, by a preponderance of the evidence, to show that the waiver was knowingly, intelligently, and voluntarily made.

Nebraska courts are cautioned to take special care in scrutinizing a purported confession or waiver by a child. In explaining to a juvenile his or her right to counsel, courts are cautioned to employ language that the juvenile can understand and should take the time necessary to conduct a sufficient inquiry into the juvenile’s understanding of the right to counsel and waiver thereof.


court that he made the request to set aside his admission. The court determined that Justin had entered into his plea freely, voluntarily, and intelligently and denied Justin’s motion to withdraw his admission.

During the dispositional portion of the hearing, the court discussed Justin’s actions, behavior, and attitude during the period after August 13, 2009, including his noncompliance at home, his behaviors at school, his use of marijuana, and his unwillingness to accept responsibility. The court determined that it would be in Justin’s best interests to be committed to the Office of Juvenile Services at the Youth Rehabilitation and Treatment Center in Kearney until he is discharged or paroled.

Justin subsequently perfected his appeal to the Nebraska Court of Appeals. Justin asserts that the juvenile court erred in denying his motion to withdraw his admission where the admission resulted from an unknowing and uncounseled waiver of his right to counsel.

On January 14, 2011, the State filed a motion for summary dismissal, alleging that this case is moot because, as of December 1, 2010, Justin is no longer a ward of the State, his case has been closed, and he is no longer considered a parolee or is not on parole.

In response, Justin argues that he continues to be aggrieved and injured by the disposition and order of confinement entered by the juvenile court and asserts that the Nebraska appellate court should consider this case under the public interest exception to the mootness doctrine because other rights and liabilities may be affected by the determination of this case.

The Nebraska Court of Appeals reserved ruling on the State’s motion until after oral argument and now proceeds to consider the parties’ arguments concerning mootness.

Justin is no longer a ward of the State, his case has been closed, and he is no longer considered a parolee or is not on parole. Thus, Justin’s case has become moot, a conclusion that Justin does not dispute. However, Justin argues that an exception to the mootness doctrine should be applied in this case because he will continue to be aggrieved by the decision.

The Nebraska Court of Appeals now turns to an examination of the collateral consequences exception to the mootness doctrine which has been applied in the context of criminal proceedings in Nebraska.

In 1991, the Nebraska Supreme Court found that the appeal was not moot, even though the appellant had completed his sentence, because the felony conviction subjected him to collateral consequences, including the loss of voting rights in state elections, possible use of the felony conviction to impeach his credibility, and possible consideration of the felony conviction in imposing a sentence for any subsequent offense.

The Nebraska Supreme Court in that 1991 case relied, in part, on a United States Supreme Court case, which held that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.

Although Nebraska has not applied the collateral consequences exception found in the criminal arena to a juvenile matter, other states have done so.

In 1972, the Texas Supreme Court was presented with a situation very similar to the case at hand. In that case, the juvenile appealed from an order finding him to be delinquent and committing him to the Texas Youth Council. After the appeal was filed, the juvenile was released from probation and also reached the age of majority. The State of Texas suggested that the case therefore had become moot. The Texas Supreme Court disagreed, finding that the case was not moot. The court reasoned that a juvenile would have no way to exonerate himself if his appeal were mooted due to the expiration of a relatively short sentence, the lifting of probation, or the juvenile’s attaining the age of majority. The court also noted that an adjudication of delinquency could affect admission to a profession, the armed services, or private employment, and it noted other legal consequences of adjudication, including consideration upon setting punishment for future criminal or juvenile cases and publication of the record if the juvenile were later charged with a felony.

Also, in 2010, the Texas Court of Appeals found that a mother’s appeal from the finding that she contributed to a child’s delinquency reviewable under the collateral consequences exception to the mootness doctrine after the child completed probation due to various legal consequences, including the requirement that the mother attend counseling, pay fees and restitution, and provide the probation department with the child’s school records.

In 2007, the Ohio Supreme Court found a juvenile’s appeal from adjudication as a juvenile traffic offender not moot following the voluntary payment of a fine because the imposition of points on the license was a statutorily imposed penalty sufficient to create a collateral disability.

In 1973, the New York Supreme Court, Appellate Division, found a juvenile’s appeal from adjudication not moot following his discharge from probation due to the possibility of collateral legal consequences.

The Nebraska Court of Appeals concludes that the collateral consequences exception to the mootness doctrine should be applied in this case.

Justin asserts that he will be subject to various collateral consequences as a result of his juvenile record. The Nebraska Court of Appeals agrees. Courts in Nebraska routinely consider a defendant’s juvenile court record when sentencing in adult


Q: What is the Collateral Consequences Exception to the mootness doctrine?

A: In this Nebraska Appellate Court case, the juvenile’s case was moot because he was no longer a ward of the state, his case had been closed, and he was no longer on parole. Therefore, the Collateral Consequences Exception to the mootness doctrine was applicable because he would be subject to various collateral consequences as a result of his juvenile record. Under this exception, the juvenile can still appeal his or her case.

In this case, the collateral consequences included that: courts routinely considered a defendant’s juvenile court record when sentencing in adult criminal cases, and the juvenile might have a duty to divulge a juvenile disposition order on various admissions and applications, such as a bar examination application questionnaire, and the military considered applicant’s juvenile record when determining fitness to enter into armed services or suitability for participation in special programs.

Previously Nebraska had only applied the Collateral Consequences Exception to the mootness doctrine to adult criminal cases.

Q: Have other states applied the Collateral Consequences Exception to the mootness doctrine to juvenile cases?

A: Yes. The Texas Supreme Court was presented with a very similar situation. The court reasoned that a juvenile would have no way to exonerate himself if his appeal were mooted due to the expiration of a relatively short sentence, the lifting of probation, or the juvenile’s attaining the age of majority. The court also noted that an adjudication of delinquency could affect admission to a profession, the armed services, or private employment, and it noted other legal consequences of adjudication, including consideration upon setting punishment for future criminal or juvenile cases and publication of the record if the juvenile were later charged with a felony.

Likewise, the New York Supreme Court, Appellate Division, found a juvenile’s appeal from adjudication not moot following his discharge from probation due to the possibility of collateral legal consequences.

Q: In Nebraska, what is the standard for appropriate grounds for withdrawing an admission in a juvenile case?

A: There is no case law in Nebraska setting forth standards for appropriate grounds for withdrawing an admission in a juvenile case. The State asserts that the standard for withdrawing pleas in adult criminal cases is appropriate for use in juvenile court, since it balances the interests of justice and fairness to a defendant against the potential prejudice to the State by the withdrawal of the plea. In this 2011 Appellate Court case, the Nebraska Court concludes that it is appropriate to adopt this criminal standard for the withdrawal of a plea.

Frequently Asked Questions

criminal cases. Justin may also have a duty to divulge a juvenile disposition order on various admissions and applications, such as the Nebraska bar examination application questionnaire -- requiring reporting of citations, arrests, charges, or convictions as adult or juvenile for violation of any law except moving traffic violations which are reported elsewhere.

The Nebraska Court of Appeals also notes that the military considers an applicant’s juvenile record when determining fitness to enter into the armed services or suitability for participation in special programs.

The Nebraska Court of Appeals concludes that Justin may be subject to collateral consequences such that his appeal is not moot.


The Nebraska Court of Appeals is mindful of the Nebraska statutes that allow for the sealing of juvenile records upon the satisfactory completion of probation or another treatment or rehabilitation program and which prohibit questioning a person, with respect to any arrest for which the record is sealed, in connection with applications for employment, a license, or other rights or privileges. These statutes provide, however, that a sealed record is still accessible to law enforcement officers, prosecutors, and sentencing judges in the investigation of crimes and in the prosecution and sentencing of criminal defendants.

There is no evidence in the record with respect to whether Justin satisfactorily completed his treatment or rehabilitation program or whether his record has been sealed.

Having concluded that Justin’s appeal is not moot, the Nebraska appellate court now turns to the merits of Justin’s appeal.

Justin asserts that the juvenile court erred in denying his motion to withdraw his admission where the admission resulted from an unknowing and uncounseled waiver of his right to counsel.

In considering Justin’s assignment of error, the Nebraska Court of Appeals first considers whether he knowingly, voluntarily, and intelligently waived his right to counsel. Then the state appellate court considers whether Justin’s newfound claim of innocence is a fair and just reason to withdraw his admission.

The first step in examining Justin’s waiver of his right to counsel is to determine whether he was fully advised of his rights. It is clear from the record that the juvenile court explained Justin’s rights as required by statute. The court provided a very detailed explanation of Justin’s rights and the potential consequences or dispositions, stopping at numerous points during the hearing to inquire whether Justin understood the explanation or had any questions. There is no question that the court’s advisement met the statutory requirements.

Next, the Nebraska Court of Appeals considers whether Justin knowingly waived his right to counsel. Whether a juvenile has knowingly, voluntarily, and intelligently waived the right to counsel is to be determined from the totality of the circumstances.

The circumstances considered in a totality of the circumstances analysis of a juvenile’s waiver of counsel include the age, intelligence, and education of the juvenile; the juvenile’s background and experience generally, and more specifically, in the court system; the presence of the juvenile’s parents; the language used by the court in describing the juvenile’s rights; the juvenile’s conduct; the juvenile’s emotional stability; and the intricacy of the offense.

Where a juvenile waives his or her right to counsel, the burden lies with the State, by a preponderance of the evidence, to show that the waiver was knowingly, intelligently, and voluntarily made.

Courts should take special care in scrutinizing a purported confession or waiver by a child. In explaining to a juvenile his or her right to counsel, courts should take care to employ language that the juvenile can understand and should take the time necessary to conduct a sufficient inquiry into the juvenile’s understanding of the right to counsel and waiver thereof.In this case, the totality of the circumstances also points to a knowing, voluntary, and intelligent waiver of counsel. Justin was 17 years old. Justin was charged with criminal mischief for throwing rocks and causing damage to a building, which is not a complicated offense. Although he was not experienced in the court system, his mother was present with him at the hearing. The juvenile court used plain language in explaining Justin’s rights, often pausing to provide additional clarification. The court gave Justin the opportunity to speak with his mother prior to making his decision about counsel. Justin’s mother stated that she agreed with the decision to proceed without an attorney.

The Nebraska Court of Appeals also note that Justin was appointed an attorney in November 2009 and continued to be represented by counsel through the remaining proceedings prior to appeal. The District Court did not abuse its discretion in finding that Justin made a knowing, voluntary, and intelligent waiver of his right to counsel.

There is no case law in Nebraska setting forth standards for appropriate grounds for withdrawing an admission in a juvenile case.

The State asserts that the standard for withdrawing pleas in adult criminal cases is appropriate for use in juvenile court, since it balances the interests of justice and fairness to a defendant against the potential prejudice to the State by the withdrawal of the plea.

However, the Nebraska Court of Appeals found case law from other jurisdictions (Kansas, the District of Columbia, and Colorado) which apply the adult criminal standard for withdrawal of pleas in cases analyzing a juvenile’s request to withdraw an admission.

However, 1997 Pennsylvania case law found that adult criminal rules and guidelines were inapplicable and applied the best interests of the child standard to the review of a decision refusing to permit a juvenile to withdraw an admission of delinquency.

Because neither the Nebraska Juvenile Code nor prior case law has determined the standard for a juvenile’s withdrawal of an admission to a crime, the Nebraska Court of Appeals concludes that it is appropriate to adopt the criminal standard for withdrawal of a plea in the context of a request to withdraw an admission in a juvenile proceeding.

After the entry of a plea of guilty or no contest, but before sentencing, a court, in its discretion, may allow a defendant to withdraw his or her plea for any fair and just reason, provided


that the prosecution has not been or would not be substantially prejudiced by its reliance on the plea entered.

The burden is on the defendant to establish by clear and convincing evidence the grounds for withdrawal of a plea. The right to withdraw a plea previously entered is not absolute, and, in the absence of an abuse of discretion on the part of the trial court, refusal to allow a defendant’s withdrawal of a plea will not be disturbed on appeal.

Justin argues that he had a fair and just reason to withdraw his admission because he pled after an unknowing waiver of his right to counsel and because he now states that he was innocent of the crime.

The Nebraska Court of Appeals has already found that Justin knowingly, voluntarily, and intelligently waived his right to counsel, so the question is whether Justin’s newfound claim of innocence is a fair and just reason to withdraw his admission.

At the August 2009 hearing, Justin told the juvenile court that it was his decision to admit the charge and informed the court that he was admitting the charge because it was true. After hearing the factual basis for the criminal mischief charge, Justin told the court that it was still his decision to admit the charge.

In support of Justin’s assertion that he did not commit the crime, his mother testified that she now believes that Justin did not throw any rocks and should be allowed to withdraw his plea. Another of the juveniles involved in the incident testified that Justin never picked up a rock on the evening in question. Justin also testified that he did not throw a rock.

The Nebraska Court of Appeals notes, as did the juvenile court, that Justin did not seek to withdraw his admission until after being removed from drug court, at which time he had had appointed counsel for five months.

The Nebraska Court of Appeals agrees with Justin’s assertion that courts should be attentive to the capacity of juveniles to comprehend how and why they are being held accountable for their behavior, but there is nothing in the record to show that Justin was incapable of such understanding. He was a 17–year–old high school student being asked to account for throwing rocks and damaging a window. Justin has not shown a fair and just reason for withdrawal of his plea.

The juvenile court did not abuse its discretion in denying Justin’s motion. The District Court did not abuse its discretion in finding that Justin made a knowing, voluntary, and intelligent waiver of his right to counsel or in denying Justin’s motion to withdraw his admission.

Held that: collateral consequences exception to mootness doctrine was applicable because juvenile would be subject to various collateral consequences as result of his juvenile record; juvenile’s waiver of his right to counsel was knowing,

Did You Know?

Kansas, the District of Columbia, and Colorado apply the adult criminal standard for withdrawal of pleas in cases analyzing a juvenile’s request to withdraw an admission.

However, Pennsylvania found adult criminal rules and guidelines inapplicable and applied the best interests of the child standard to review the decision refusing to permit a juvenile to withdraw an admission of delinquency.

Finally, some states have actual juvenile procedure rules incorporating standards for withdrawing pleas.

In Florida, the court may permit the withdrawal of a guilty plea for good cause any time prior to beginning of disposition hearing.

In Minnesota, a juvenile may withdraw a plea of guilty before disposition for any just reason and after disposition if necessary to correct manifest injustice.

voluntary, and intelligent; as matter of apparent first impression, criminal standard for withdrawal of plea is applicable in context of request to withdraw an admission in juvenile proceeding; and juvenile court did not abuse its discretion in denying juvenile’s motion to withdraw his admission. Separate Juvenile Court, Lancaster County affirmed.


MIRANDA WARNING Age

j.d.b. v. north carolina---s.ct--- (n.c., 2011)

united states supreme court

This case presents the question whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda. It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, the United States Supreme Court holds that a child’s age properly informs the Miranda custody analysis.

Petitioner J.D.B. was a 13–year–old, seventh-grade student attending class at Smith Middle School in Chapel Hill, North Carolina when he was removed from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at least half an hour. This was the second time that police questioned J.D.B. in the span of a week.

Five days earlier, two home break-ins occurred, and various items were stolen. Police stopped and questioned J.D.B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police also spoke to J.D.B.’s grandmother—his legal guardian—as well as his aunt. Police later learned that a digital camera matching the description of one of the stolen items had been found at J.D.B.’s middle school and seen in J.D.B.’s possession.

Investigator DiCostanzo, the juvenile investigator with the local police force who had been assigned to the case, went to the school to question J.D.B. Upon arrival, DiCostanzo informed the uniformed police officer on detail to the school (a so-called school resource officer), the assistant principal, and an administrative intern that he was there to question J.D.B. about the break-ins.

Although DiCostanzo asked the school administrators to verify J.D.B.’s date of birth, address, and parent contact information from school records, neither the police officers nor the school administrators contacted J.D.B.’s grandmother. The uniformed officer interrupted J.D.B.’s afternoon social studies class, removed J.D.B. from the classroom, and escorted him to a school conference room. There, J.D.B. was met by DiCostanzo, the assistant principal, and the administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J.D.B. was questioned for the next 30 to 45 minutes.

Prior to the commencement of questioning, J.D.B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room. After learning of the prospect of juvenile detention, J.D.B. confessed that he and a friend were responsible for the break-ins.

DiCostanzo only then informed J.D.B. that he could refuse to answer the investigator’s questions and that he was free to leave. Asked whether he understood, J.D.B. nodded and provided further detail, including information about the location of the stolen items. Eventually J.D.B. wrote a statement, at DiCostanzo’s request. When the bell rang indicating the end of the schoolday, J.D.B. was allowed to leave to catch the bus home.

Two juvenile petitions were filed against J.D.B., each alleging one count of breaking and entering and one count of larceny.

J.D.B.’s public defender moved to suppress his statements and the evidence derived therefrom, arguing that suppression was necessary because J.D.B. had been interrogated by police in a custodial setting without being afforded Miranda warnings, and because his statements were involuntary under the totality of the circumstances test.

After a suppression hearing at which DiCostanzo and J.D.B. testified, the trial court denied the motion, deciding that J.D.B. was not in custody at the time of the schoolhouse interrogation and that his statements were voluntary. As a result, J.D.B. entered a transcript of admission to all four counts, renewing his objection to the denial of his motion to suppress, and the court adjudicated J.D.B. delinquent.

A divided panel of the North Carolina Court of Appeals affirmed.

The North Carolina Supreme Court held, over two dissents, that J.D.B. was not in custody when he confessed, declining to extend the test for custody to include consideration of the age of an individual subjected to questioning by police.

The United States Supreme Court granted certiorari to determine whether the Miranda custody analysis includes consideration of a juvenile suspect’s age.

Any police interview of an individual suspected of a crime has coercive aspects to it. Only those interrogations that occur while a suspect is in police custody, however, heighten the risk that statements obtained are not the product of the suspect’s free choice. Indeed, the pressure of custodial interrogation is so immense that it can induce a frighteningly high percentage of people to confess to crimes they never committed. That risk is all the more troubling—and recent studies suggest, all the more acute—when the subject of custodial interrogation is a juvenile.


As the United States Supreme Court has repeatedly emphasized, whether a suspect is in custody is an objective inquiry. Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.

Rather than demarcate a limited set of relevant circumstances, the United States Supreme Court has required police officers and courts to examine all of the circumstances surrounding the interrogation, including any circumstance that would have affected how a reasonable person in the suspect’s position would perceive his or her freedom to leave. The benefit of the objective custody analysis is that it is designed to give clear guidance to the police.

The State and its amici contend that a child’s age has no place in the custody analysis, no matter how young the child subjected to police questioning.

The United States Supreme Court cannot agree. In some circumstances, a child’s age would have affected how a reasonable person in the suspect’s position would perceive his or her freedom to leave. That is, a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.

The United States Supreme Court thinks it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis. A child’s age is far more than a chronological fact. The law has historically reflected the assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them.

Even where a reasonable person standard otherwise applies, the common law has reflected the reality that children are not adults. In negligence suits, for instance, where liability turns on what an objectively reasonable person would do in the circumstances, all American jurisdictions accept the idea that a person’s childhood is a relevant circumstance to be considered.

History is replete with laws and judicial recognition that children cannot be viewed simply as miniature adults. The United States Supreme Court sees no justification for taking a different course here. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances unknowable to them, nor to anticipate the frailties or idiosyncrasies of the particular suspect whom they question.

The same wide basis of community experience that makes it possible, as an objective matter, to determine what is to be expected of children in other contexts, likewise makes it possible to know what to expect of children subjected to police questioning.

In other words, a child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action. In fact, in many cases involving juvenile suspects, the custody analysis would be nonsensical absent some consideration of the suspect’s age.

This case is a prime example. Were the court precluded from taking J.D.B.’s youth into account, it would be forced to evaluate the circumstances present here through the eyes of a reasonable person of average years. In other words, how would a reasonable adult understand his situation, after being removed from a seventh-grade social studies class by a uniformed school resource officer; being encouraged by his assistant principal to do the right thing; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker? To describe such an inquiry is to demonstrate its absurdity.

Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances. Indeed, although the dissent suggests that concerns regarding the application of the Miranda custody rule to minors can be accommodated by considering the unique circumstances present when minors are questioned in school, the effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned.

A student—whose presence at school is compulsory and whose disobedience at school is cause for disciplinary action—is in a far different position than, say, a parent volunteer on school grounds to chaperone an event, or an adult from the community on school grounds to attend a basketball game. Without asking whether the person questioned in school is a minor, the coercive effect of the schoolhouse setting is unknowable.

In this case, the United States Supreme Court holds that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.

This is not to say that a child’s age will be a determinative, or even a significant, factor in every case. It is, however, a reality that courts cannot simply ignore.

The State and its amici offer numerous reasons that courts must blind themselves to a juvenile defendant’s age. None is persuasive. To start, the State contends that a child’s age must be excluded from the custody inquiry because age is a personal


characteristic specific to the suspect himself rather than an external circumstance of the interrogation.

Despite the supposed significance of this distinction, however, at oral argument counsel for the State suggested without hesitation that at least some undeniably personal characteristics—for instance, whether the individual being questioned is blind—are circumstances relevant to the custody analysis.

Thus, the State’s quarrel cannot be that age is a personal characteristic, without more. The State further argues that age is irrelevant to the custody analysis because it goes to how a suspect may internalize and perceive the circumstances of an interrogation. But the same can be said of every objective circumstance that the State agrees is relevant to the custody analysis: Each circumstance goes to how a reasonable person would internalize and perceive every other. In the same vein, the State and its amici protest that the effect of age on the perception of custody is internal or psychological.

But the whole point of the custody analysis is to determine whether, given the circumstances, a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave. Because the Miranda custody inquiry turns on the mindset of a reasonable person in the suspect’s position, it cannot be the case that a circumstance is subjective simply because it has an internal or psychological impact on perception. Were that so, there would be no objective circumstances to consider at all.

The State next argues that a child’s age must be excluded from the analysis in order to preserve clarity. Similarly, the dissent insists that the clarity of the custody analysis will be destroyed unless a one-size-fits-all reasonable-person test applies. In reality, however, ignoring a juvenile defendant’s age will often make the inquiry more artificial, and thus only add confusion. And in any event, a child’s age, when known or apparent, is hardly an obscure factor to assess.

Though the State and the dissent worry about gradations among children of different ages, that concern cannot justify ignoring a child’s age altogether. Just as police officers are competent to account for other objective circumstances that are a matter of degree such as the length of questioning or the number of officers present, so too are they competent to evaluate the effect of relative age. Indeed, they are competent to do so even though an interrogation room lacks the reflective atmosphere of a jury deliberation room.

The same is true of judges, including those whose childhoods have long since passed. In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7–year–old is not a 13–year–old and neither is an adult.

There is, however, an even more fundamental flaw with the State’s plea for clarity and the dissent’s singular focus on simplifying the analysis: Not once has the United States Supreme Court excluded from the custody analysis a circumstance that it determined was relevant and objective, simply to make the fault line between custodial and noncustodial brighter. Indeed, were the guiding concern clarity and nothing else, the custody test would presumably ask only whether the suspect had been placed under formal arrest.

Finally, the State and the dissent suggest that excluding age from the custody analysis comes at no cost to juveniles’ constitutional rights because the due process voluntariness test independently accounts for a child’s youth. To be sure, that test permits consideration of a child’s age, and it erects its own barrier to admission of a defendant’s inculpatory statements at trial.

But Miranda ‘s procedural safeguards exist precisely because the voluntariness test is an inadequate barrier when custodial interrogation is at stake. To hold, as the State requests, that a child’s age is never relevant to whether a suspect has been taken into custody—and thus to ignore the very real differences between children and adults—would be to deny children the full scope of the procedural safeguards that Miranda guarantees to adults.

The question remains whether J.D.B. was in custody when police interrogated him. The United States Supreme Court remands the case for the state court to address that question, this time taking account of all of the relevant circumstances of the interrogation, including J.D.B.’s age at the time.

The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Held that: juvenile’s age properly informs the Miranda custody analysis, so long as the juvenile’s age was known to the police officer at the time of police questioning, or would have been objectively apparent to a reasonable officer.

North Carolina Supreme Court reversed and remanded.

A dissenting opinion argued: The Court’s decision in this case may seem on first consideration to be modest and sensible, but in truth it is neither. It is fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases. And today’s holding is not needed to protect the constitutional rights of minors who are questioned by the police. Miranda ‘s prophylactic regime places a high value on clarity and certainty.

Dissatisfied with the highly fact-specific constitutional rule against the admission of involuntary confessions, the Miranda Court set down rigid standards that often require courts to ignore personal characteristics that may be highly relevant to a particular suspect’s actual susceptibility to police pressure.


This rigidity, however, has brought with it one of Miranda ‘s principal strengths—the ease and clarity of its application by law enforcement officials and courts. A key contributor to this clarity, at least up until now, has been Miranda ‘s objective reasonable-person test for determining custody. Miranda ‘s custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement.

When this custodial threshold is reached, Miranda warnings must precede police questioning. But in the interest of simplicity, the custody analysis considers only whether, under the circumstances, a hypothetical reasonable person would consider himself to be confined. Many suspects, of course, will differ from this hypothetical reasonable person. Some, including those who have been hardened by past interrogations, may have no need for Miranda warnings at all. And for other suspects—those who are unusually sensitive to the pressures of police questioning— Miranda warnings may come too late to be of any use. That is a necessary consequence of Miranda ‘s rigid standards, but it does not mean that the constitutional rights of these especially sensitive suspects are left unprotected. A vulnerable defendant can still turn to the constitutional rule against actual coercion and contend that that his confession was extracted against his will.

Today’s decision shifts the Miranda custody determination from a one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with susceptibility to coercive pressures. Age, however, is in no way the only personal characteristic that may correlate with pliability, and in future cases the United States Supreme Court will be forced to choose between two unpalatable alternatives. It may choose to limit today’s decision by arbitrarily distinguishing a suspect’s age from other personal characteristics—such as intelligence, education, occupation, or prior experience with law enforcement—that may also correlate with susceptibility to coercive pressures.

Or, if the Court is unwilling to draw these arbitrary lines, it will be forced to effect a fundamental transformation of the Miranda custody test—from a clear, easily applied prophylactic rule into a highly fact-intensive standard resembling the voluntariness test that the Miranda Court found to be unsatisfactory.

For at least three reasons, there is no need to go down this road. First, many minors subjected to police interrogation are near the age of majority, and for these suspects the one-size-fits-all Miranda custody rule may not be a bad fit. Second, many of the difficulties in applying the Miranda custody rule to minors arise because of the unique circumstances present when the police conduct interrogations at school. The Miranda custody rule has always taken into account the setting in which questioning occurs, and accounting for the school setting in such cases will address many of these problems. Third, in cases like the one now before the nation’s high court, where the

suspect is especially young, courts applying the constitutional voluntariness standard can take special care to ensure that incriminating statements were not obtained through coercion.

Safeguarding the constitutional rights of minors does not require the extreme makeover of Miranda that today’s decision may portend. There is no denying that, by incorporating age into its analysis, the United States Supreme Court is embarking on a new expansion of the established custody standard.

And since Miranda is the United States Supreme Court’s rule, not a constitutional command, it is up to the Court to justify its expansion. According to the dissent: This the Court fails to do. A core virtue of Miranda has been the clarity and precision of its guidance to police and courts. This increased clarity has been thought to outweigh the burdens that Miranda imposes. Given this practice, the dissent argues that there should be a strong presumption against the Court’s new departure from the established custody test.

In the dissent’s judgment, that presumption cannot be overcome here. The Court’s rationale for importing age into the custody standard is that minors tend to lack adults’ capacity to exercise mature judgment and that failing to account for that reality will leave some minors unprotected under Miranda in situations where they perceive themselves to be confined. Indeed, it has always been the case under Miranda that the unusually meek or compliant are subject to the same fixed rules, including the same custody requirement, as those who are unusually resistant to police pressure.

Miranda ‘s rigid standards are both overinclusive and underinclusive. They are overinclusive to the extent that they provide a windfall to the most hardened and savvy of suspects, who often have no need for Miranda ‘s protections. And Miranda ‘s requirements are underinclusive to the extent that they fail to account for frailties, idiosyncrasies, and other individualized considerations that might cause a person to bend more easily during a confrontation with the police. And unless the Miranda custody rule is now to be radically transformed into one that takes into account the wide range of individual characteristics that are relevant in determining whether a confession is voluntary, the Court must shoulder the burden of explaining why age is different from these other personal characteristics.

Why, for example, is age different from intelligence? Suppose that an officer, upon going to a school to question a student, is told by the principal that the student has an I.Q. of 75 and is in a special-education class. Are those facts more or less important than the student’s age in determining whether he or she “felt at liberty to terminate the interrogation and leave?

How about the suspect’s cultural background? Suppose the police learn that a suspect they wish to question is a recent immigrant from a country in which dire consequences often befall any person who dares to attempt to cut short any meeting with the police.


Is this really less relevant than the fact that a suspect is a month or so away from his 18th birthday?

The defendant’s education is another personal characteristic that may generate conclusions about behavior and perception. The dissenter has little doubt that today’s decision will soon be cited by defendants—and perhaps by prosecutors as well—for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus.

Indeed, there are already lower court decisions that take this approach. In time, the United States Supreme Court will have to confront these issues, and it will be faced with a difficult choice. It may choose to distinguish today’s decision and adhere to the arbitrary proclamation that “age is different.” Or it may choose to extend today’s holding and, in doing so, further undermine the very rationale for the Miranda regime. If the Court chooses the latter course, then a core virtue of Miranda—the ease and clarity of its application—will be lost.

However, even today’s more limited departure from Miranda ‘s one-size-fits-all reasonable-person test will produce the very consequences that prompted the Miranda Court to abandon exclusive reliance on the voluntariness test in the first place: The Court’s test will be hard for the police to follow, and it will be hard for judges to apply.

The Court holds that age must be taken into account when it was known to the officer at the time of the interview, or when it would have been objectively apparent to a reasonable officer. The first half of this test overturns the rule that the initial determination of custody does not depend on the subjective views harbored by interrogating officers. The second half will generate time-consuming satellite litigation over a reasonable officer’s perceptions. When, as here, the interrogation takes place in school, the inquiry may be relatively simple. But not all police questioning of minors takes place in schools. In many cases, courts will presumably have to make findings as to whether a particular suspect had a sufficiently youthful look to alert a reasonable officer to the possibility that the suspect was under 18, or whether a reasonable officer would have recognized that a suspect’s I.D. was a fake. The inquiry will be both time-consuming and disruptive for the police and the courts. It will also be made all the more complicated by the fact that a suspect’s dress and manner will often be different when the issue is litigated in court than it was at the time of the interrogation.

Even after courts clear this initial hurdle, further problems will likely emerge as judges attempt to put themselves in the shoes of the average 16–year–old, or 15–year–old, or 13–year–old, as the case may be. Petitioner and the Court attempt to show that this task is not unmanageable by pointing out that age is taken into account in other legal contexts.

Nor do state laws affording extra protection for juveniles during custodial interrogation provide any support for petitioner’s arguments. States are free to enact additional restrictions on the police over and above those demanded by the Constitution or Miranda. In addition, these state statutes generally create clear, workable rules to guide police conduct -- statutes that require or permit parents to be present during custodial interrogation of a minor; that require minors to be advised of a statutory right to communicate with a parent or guardian; and that require parental consent to custodial interrogation.

Today’s decision, by contrast, injects a new, complicating factor into what had been a clear, easily applied prophylactic rule. The Court’s decision greatly diminishes the clarity and administrability that have long been recognized as principal advantages of Miranda ‘s prophylactic requirements.

But what is worse, the Court takes this step unnecessarily, as there are other, less disruptive tools available to ensure that minors are not coerced into confessing. As an initial matter, the difficulties that the Court’s standard introduces will likely yield little added protection for most juvenile defendants. Most juveniles who are subjected to police interrogation are teenagers nearing the age of majority. These defendants’ reactions to police pressure are unlikely to be much different from the reaction of a typical 18–year–old in similar circumstances. A one-size-fits-all Miranda custody rule thus provides a roughly reasonable fit for these defendants. In addition, many of the concerns that petitioner raises regarding the application of the Miranda custody rule to minors can be accommodated by considering the unique circumstances present when minors are questioned in school.

The Miranda custody rule has always taken into account the setting in which questioning occurs, restrictions on a suspect’s freedom of movement, and the presence of police officers or other authority figures. It can do so here as well. Finally, in cases like the one now before it, where the suspect is much younger than the typical juvenile defendant, courts should be instructed to take particular care to ensure that incriminating statements were not obtained involuntarily. The voluntariness inquiry is flexible and accommodating by nature, and the Court’s precedents already make clear that special care must be exercised in applying the voluntariness test where the confession of a mere child is at issue.

If Miranda’s rigid, one-size-fits-all standards fail to account for the unique needs of juveniles, the response should be to rigorously apply the constitutional rule against coercion to ensure that the rights of minors are protected. There is no need to run Miranda off the rails. The Court rests its decision to inject personal characteristics into the Miranda custody inquiry on the principle that judges applying Miranda cannot blind themselves to commonsense reality. But the Court’s shift is fundamentally at odds with the clear prophylactic rules that Miranda has long enforced. Miranda frequently requires judges to blind themselves to the reality that many un-Mirandized custodial confessions are by no means involuntary or coerced.


It also requires police to provide a rote recitation of Miranda warnings that many suspects already know and could likely recite from memory.

Under today’s new, reality-based approach to the doctrine, perhaps these and other principles of our Miranda jurisprudence will, like the custody standard, now be ripe for modification. Then, bit-by-bit, Miranda will lose the clarity and ease of application that has long been viewed as one of its chief justifications. The dissenters respectfully dissent.

Q: Do state statutes ever take a juvenile’s age into account when Miranda rights are an issue?

A: Yes. For example, in Montana when a juvenile is taken into custody for questioning on a matter that could result in a petition alleging that the juvenile is either a delinquent or a youth in need of intervention, the juvenile must be advised of the right against self-incrimination and the right to counsel.

However, the juvenile can waive these rights under the following situations:

If the juvenile is 16 or older, he or she can make an effective waiver of rights. But, a juvenile must be • represented by counsel at a probable cause hearing unless the right to counsel is waived, after consultation with an attorney prior to the hearing.

If the juvenile is under 16 and the juvenile and the juvenile’s parent or guardian agree, they may make an • effective waiver. But, a juvenile must be represented by counsel at a probable cause hearing unless the right to counsel is waived, after consultation with an attorney prior to the hearing.

If the juvenile is under 16 and the juvenile and the juvenile’s parent or guardian do not agree, the juvenile • can make an effective waiver only with advice of counsel.

(Montana Youth Court Act, section 41-5-331)

In New Mexico: no confessions, statements or admissions may be introduced against a child under the age of thirteen years on the allegations of the petition. There is a rebuttable presumption that any confessions, statements or admissions made by a child thirteen or fourteen years old to a person in a position of authority are inadmissible.

(New Mexico Children’s Code, Delinquency Act, section 32A-2-14)

Under Washington law, waiver of any right which a juvenile has under the state Juvenile Justice Act, must be an express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being waived. Whenever the state Juvenile Justice Act refers to waiver or objection by a juvenile, the word juvenile means a juvenile who is at least twelve years of age. If a juvenile is under twelve years of age, the juvenile’s parent, guardian, or custodian must give any waiver or offer any objection.

(Washington Juvenile Justice Act, section 13.40.140)

Frequently Asked Questions


On July 06, 2009, the Delaware Legislature amended Delaware’s Uniform Parentage Act to include a provision establishing and defining a de facto parent.

Reviewing the circumstances of the present action in light of the recent de facto parent amendment begs the question: How many parents can a child have?

In considering this basic question, does Delaware’s recently added de facto parent statute violate an existing parent’s due process rights as guaranteed by the 14th Amendment of the Constitution of the United States as well as the Delaware Constitution?

For the reasons hereafter stated, the Delaware Family Court, Sussex County holds that the de facto parent statute, upon which Petitioner relies to have standing to seek custody of a child not his biological child, and where the child already has two fit parents, violates the due process rights of the child’s biological parents. As such, Petitioner lacks standing to bring his action, and his case must be dismissed.

The legislative amendment to Delaware’s Uniform Parentage Act, which established and defined a de facto parent, was likely created in response to the Delaware Supreme Court’s decision of February 03, 2009. In that case, the Delaware Supreme Court held a former lesbian partner of a child’s adoptive mother did not have standing to seek custody of the adopted child under the claim of being a de facto parent.

The Delaware Supreme Court determined it was not for the Delaware Judiciary to expand the definition of a parent-child relationship beyond what the Delaware Legislature had already set forth in a law which unambiguously defined the parent-child relationship. Even more, the Delaware Supreme Court stated the Delaware Legislature clearly declined to include the de facto parent definition in Delaware’s Uniform Parentage Act despite the Legislature’s knowledge of such a doctrine being considered in certain other states around the country.

Likely in response to the 2009 decision, the Delaware Legislature quickly amended Delaware’s Uniform Parentage Act on July 06, 2009 to include a de facto parent provision. The de facto parent amendment expanded the definition of what relationships could qualify as a parent-child relationship.

The amendment states the de facto parent relationship will be established if the Family Court determines the person claiming

PARENT/CHILD De Facto Parent

bancroft v. jameson---a.2d--- (del, 2010)

delaware family court

to be a child’s de facto parent can demonstrate the existence of the following three factors: (1) Has the support and consent of the child’s parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent; (2) has exercised parental responsibility for the child as that term is defined in Delaware law; and (3) has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

In reading the foregoing provisions, one must take particular note of the wording contained in the above Subsection 1, where it states the person claiming to be the de facto parent “has had the support and consent of the child’s parent or parents.”

The crux of the issue before the Delaware Family Court lies particularly within the language just emphasized, where the language appears to clearly suggest a child, although already having two fit parents, may now have a third parent, or perhaps even more parents.

Blake Sebastian Bancroft, hereinafter referred to as “Boyfriend,” has filed for custody of 9 year old Breanna Nickelson, hereinafter referred to as “Child.” Boyfriend avers the de facto parent amendment gives him standing to seek custody of Child, a child who is not Boyfriend’s biological child.

Child’s biological parents are Tabitha Jameson, mother, and Raymond Nickelson, father. Mother and Father share joint custody of Child, with Child residing primarily with Mother, and Father having visitation, pursuant to a Consent Order dated June 28, 2005. Child’s biological father, as well as his extended family, visits Child on a regular basis. Father has also maintained his child support. Visitation for Child’s paternal grandparents was specifically provided for in the Consent Order entered into between Mother and Father dated June 25, 2005, in response to a petition filed by Paternal Grandparents.

Boyfriend has lived with Mother for the past 5 years. During those 5 years, Mother and Boyfriend never married. However, Mother and Boyfriend have a child together. Nine year old Child has lived in the home occupied together by Mother, Boyfriend, and Child’s five year old half-sibling, during the five years Mother and Boyfriend resided together.

Boyfriend filed a Petition for Custody of nine-year-old Child, as well as a Petition for Custody of his five-year-old biological daughter, shortly after Boyfriend and Mother separated around December 18, 2009.

Although Boyfriend’s initial Custody Petition of Child, wherein he alleged he has standing to file as a de facto parent, alleged both of Child’s biological parents consented to him assuming parental responsibilities, both parents have filed affidavits denying their consent. The sum and substance of all of Boyfriend’s pleadings fails to indicate any suggestion that Child was either dependent or neglected in the care of her parents.


The first version of the Uniform Parentage Act in 1973 was intended to identify two legal parents for both marital and non-marital children. In 2004, the Delaware General Assembly repealed Delaware’s 1983 version of the Uniform Parentage Act and enacted a new statute reflecting the UPA’s 2000 and 2002 revisions and amendments. As such, Delaware’s Act not only served the original purpose of identifying fathers to collect child support, it also recognized the technological advances to determine parentage by genetic testing. Delaware’s Uniform Parentage Act also went so far as to make some changes recognizing not all parents were married, and some parents were giving birth through assisted reproduction.

But the Act did not include a provision for recognizing a status of de facto parents.

The Delaware Family Court now turns to various inconsistencies presented by the wording of the recent de facto parent amendment with other existing statutory provisions of the Delaware Code.

As already noted, the recently added wording of the de facto parent amendment to Delaware’s Uniform Parentage Act suggests the possibility of a child having more than two capable parents.

Other provisions of the Delaware Code relating to parents, however, only envision a maximum of two parents. Thus, the provisions regarding the payment of child support clearly envision a child having only two parents. Likewise, the provisions regarding the general responsibilities of parents to their children speak of a father and a mother having those responsibilities, but if the other dies, the responsibilities fall on the surviving parent. Again, only two parents are contemplated by the statute.

One must query whether the Delaware Legislature intended these prior provisions, which contained a maximum limit of two parents in custody and support actions, to be expanded by the present de facto parent amendment, which clearly seems to envision the possibility of more than two parents.

If that was the Legislature’s intent, one might have expected these pre-existing statutes to also have been changed. Or was it the Legislature’s intent that these pre-existing laws would not be changed when, as already emphasized, Title13, Section 8–203, of the Delaware Code contains the exception which suggests the de facto parent parent-child relationship established in the Uniform Parentage Act is not intended to affect provisions, “otherwise specifically provided by other law of this State?” Or, does the possibility exist the Legislature, in its haste to correct the effect on same sex couples by the Delaware Supreme Court’s 2009 decision, did not consider the very broad and overreaching consequences the de facto parent amendment would have in cases involving children who already had two parents?

Since the early 1970’s, there have been at least three areas in our society which have undergone significant change, all of which have led to the issue now before the Delaware Family Court.

The Court has already discussed the considerable scientific and technological advances which have caused the Uniform Parentage Act to change from simply setting rules establishing paternity through various presumptions or an actual acknowledgment to the very specific paternity determinations now available through genetic testing.

The second change, mainly through case law, has been the acknowledgment by many states of the rights of persons of the same sex to be considered parents of the same child where they have gone through various combined efforts of adoption, assisted reproduction or surrogate agreement.

Finally, and perhaps the biggest change in our society, is the change from what we once knew as the traditional American family.

In reaching the decision in this case, the Judge in this case has read many Delaware decisions as well as many decisions issued from around the country. Common to the reading of all of these decisions is a limitation of only two parents per child.

In the early years of the Uniform Parentage Act, the main purpose of the Act generally was to determine the father’s identity. The advent of genetic testing improved the ability to determine a father’s identity. However, with that improvement, certain rules had to be established to protect the bond of a child with a person who had identified himself as the child’s father, but where it was later discovered the purported father was not the biological father. The rules continued to follow the formula of no more than two parents per child in preserving an intact relationship benefiting a child.

The cases and rules providing parental rights to same sex couples have continued to follow the two parent per child equation. All of these cases have focused solely on two adults

Did You Know?In states where statutes have not specifically recognized de facto parents, some courts have found that individuals with the status of de facto parent, or other similar status, have standing to petition for child custody or visitation, or have child support obligations. These states include: Indiana, Pennsylvania, New Jersey, Missouri, Wisconsin, and Alaska


entering into an agreement from the beginning which resulted in the birth of a child with their agreement including thereafter raising the child.

Delaware’s statutory scheme has long involved only parents being able to bring an action for custody, except that third parties could bring an action for guardianship of a child if they could demonstrate a child would be dependent or neglected in a parent’s care.

Even in an adoption, one parent would have to have died, or had their parental rights terminated, before the Court would entertain an adoption petition. Delaware adoptions presently require a social study and report from an approved agency before a decree of adoption can be granted. Presently, in Delaware, except for placement of a child for adoption by an approved agency, only a stepparent, a blood relative, or a guardian or permanent guardian may file a Petition for Adoption to be considered a child’s parent.

Are we to assume the Delaware Legislature intended to bypass these required protections so that Boyfriends can obtain parent status pursuant to the de facto parent amendment?

Other than recognizing as parents persons who are biologically tied to a child either directly, or through assisted reproduction or surrogate agreement, or through adoption, Delaware has never recognized any other individual as a potential parent who could seek custody, other than a stepparent. Even then, custodial rights of a stepparent can occur only in very limited circumstances.

Thus, a stepparent may seek custody of a child, but only upon the death or disability of the custodial or primary placement parent where that child has been residing with the stepparent immediately prior to the death or disability of the custodial or primary placement parent. A 1998 decision of the Delaware Supreme Court upholds this statute, and, in so doing, notes the careful limitations included in the Stepparent Custody Statute.

In the Delaware Family Court’s review of various statutes and cases around the country, the Court is of the opinion that the State of Delaware is the first state to create the possibility of a child having more than two parents.

In the law, there is a well-established presumption that fit parents act in their children’s best interest. Furthermore, there is normally no reason for the state to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children. A parent’s interest to care and make decisions for their children is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court. As such, this interest is protected by the Due Process Clause of the 14th Amendment of the Constitution of the United States. The Due Process Clause does not permit a state to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.

Delaware Courts have echoed these same concerns. This trio of rules: (1) the parental right being a fundamental constitutionally protected right, (2) is not to be abrogated where a non-parent is able to provide an easier or more luxurious life, and (3) the only exception occurs when the child is found to be dependent or neglected in the parent’s care, followed by both the United States Supreme Court and the Courts of Delaware are time honored, and have never deviated from a basic concept of a maximum of two parents for one child.

Delaware’s recently enacted de facto parent amendment clearly presents the possibility of diminishing and diluting the constitutional rights of fit parents. The combination of the technological advances both of genetic testing and assisted reproduction, along with a change in view from the traditional family concept of prior years, has given rise in the past decade or more to numerous decisions around the country concerned with the issue of whether a person can obtain parental and custodial rights of a minor where the minor was conceived by assisted reproduction or surrogate relationship during that person’s committed intimate domestic relationship with another person of the same sex, and where both of these individuals made a joint decision to cause the birth of the child and thereafter raise the child.

Through various legal fictions given such names as: the Psychological Parent, In Loco Parentis, or De facto Parent Doctrine, many states, beginning at least as early as the year 1995, found that the non-biologically related or non-adoptive parent involved in such a committed relationship was entitled to rights of custody and visitation.

The present case is distinguishable from these many same sex couple decisions, because the present case involves Mother’s former boyfriend seeking custody as a de facto parent of a child who already has two biological parents who have previously established a custody and visitation plan for their child. The biological father has maintained contact with the child and regularly met his child support obligation.

Did You Know?Several jurisdictions have statutes that courts have interpreted to permit de facto parents to petition for custody, visitation, an allocation of parental rights or similar orders. These states include: Washington, West Virginia, California, Maine, Arizona, Colorado, Rhode Island, Minnesota, Massachusetts, Connecticut, and Texas.


The allegations contained in Boyfriend’s supporting documents fail to demonstrate the child is dependent or neglected in the care of her biological parent or parents.

Also, where Boyfriend never married Mother, but is not prohibited by doing so by State law, the Court questions whether Boyfriend’s commitment to having a long lasting relationship with Mother could be judged as strong as the commitment shared by the same sex couples, some of whom actually went through a formal ceremony although not necessarily sanctioned by State law.

The failure of Boyfriend in the case sub judice to have ever entered into the formal and legally recognized status of marriage with Mother is a factor to be considered in this decision. Had Boyfriend married Mother, he at least would have been entitled to the legal consideration of a stepfather seeking custody in the limited circumstances of Mother’s death or disability.

If the Court were to grant Boyfriend parental custodial rights pursuant to the de facto parent amendment, the Court would be awarding Boyfriend greater unlimited custodial rights than Boyfriend would be entitled to if he had made the commitment to marry Mother and become Child’s legal stepparent. The Court doubts the Legislature intended to reward such a lack of formal commitment which would seem to discourage marriage.

This decision has focused on the constitutional rights of parents. But, the overriding focus in every child custody case is the child’s best interest. Until the passage of the de facto parent amendment, Delaware statutory law only permitted a custody case to occur between two biological parents, or adoptive parents.

The many decisions involving same sex couples recognize the importance of determining the intention and consent of each of the individuals leading to the conception and birth of the child. All of these cases, except where one of the persons in the same sex couple relationship adopted, involved a necessary hidden third party who participated in the child’s conception as a donor, and possibly in the child’s birth through surrogate agreement.

One can only question whether the language in the de facto parent amendment which discusses having the consent of the parent or parents was so worded in order to be sure to include the donor or surrogate person. If such was the intent of the Delaware Legislature, applying its statutory amendment only to same sex couple cases, then the statute, with all of its criteria, would appear to be appropriate.

But when the wording of the de facto parent statute is applied to the circumstances in the present action, which involves a third party seeking custody of a child who already has two fit parents, the statute raises constitutional concerns requiring the Delaware Family Court to exercise its necessary function to set aside the statute.

If a constitutional issue of parental rights existed in a same sex couple case, the clear factual demonstrations of consent certainly acted as a waiver of any parent claiming a violation of their constitutional rights. Thus, these same sex couple cases focused on the factual circumstances which evidenced the intended consent of the committed same sex couples towards the creation and joint raising of the child.

Coupling this consensual intent with the longevity of the couple’s relationship following a child’s birth, together with the interaction of the same sex persons with the child, caused the Delaware Family Courts’ focus to emphasize a child’s best interest, as opposed to being concerned with constitutional issues. The wording used in Delaware’s de facto parent amendment is strikingly similar to the tests Delaware’s Family Court Judges, as well as other Judges around the country, had created in their decisions to determine whether de facto parent status was appropriate in same sex couple cases.

The tests and wording of Delaware’s de facto parent statute were not a result of creations from cases similar to the one now before the Family Court, which involves a boyfriend who claims standing to file a custody action of a child who already has two biological parents.

Courts around the country, including Delaware, have always recognized the sacred constitutional rights of two parents to raise their children, with that right only being forfeited, sometimes only temporarily, when a child is found dependent or neglected in a parent’s care.

Although the concept of parent has expanded from two persons, male and female, creating a child through their biological union, to two persons of the same sex creating a child through their committed intentions and using assisted reproduction, all of these relationships have in common a biological nexus of two parents leading to a child’s birth. The two individuals who in every case were involved in the creation of that child, whether intentionally as a same sex couple, or intentionally or accidentally as a result of a biological union of a male and female, are the only two persons who have been recognized as a parent to the child.

Furthermore, so long as those two parents were willing to exercise their parental rights over their creation appropriately, other individuals could not usurp their authority. Although there might be temporary interruptions in a parent’s authority, when the child was found dependent or neglected as a result of their care, the parent could resume their authority once they corrected the problem. Except for this temporary taking of a parent’s authority, the only time another person could become entitled to the constitutionally protected status of parent was by stepping into the shoes of a parent who died or a parent whose rights were terminated, followed by adoption.

In Delaware, the sole exception beyond the adoptive parent status is to step into the shoes of a spouse who has died or become disabled pursuant to the Stepparent Custody Statute.


Extending the sacred right of parenthood to more than two people dilutes the constitutional rights of the two parents.

Accordingly, and for the reasons stated herein, although petitioner, pursuant to the specific wording of the statute, may have standing, the Delaware Family Court finds the petitioner has no standing to bring a custody action for Child because the recent de facto parent amendment to Delaware’s Uniform Parentage Act is overbroad and violates the due process rights of the parents under the Constitution of the United States and also under the Constitution of the State of Delaware.

Accordingly, the petitioner’s Petition for Custody of Breanna Nickelson is hereby denied and dismissed.

Held that: de facto parent amendment to Uniform Parentage Act, allowing a party to seek custody of a child when the party had the support and consent of the child’s parent or parents who had fostered the formation and establishment of a parent-like relationship between the child and the party seeking custody, was overbroad and violated the due process rights of mother and father. Mother’s boyfriend’s petition for joint custody denied and dismissed.

Did You Know?

Some states define the term “de facto parent” – either by court rule, statute or case law.

CALIFORNIA

De facto parent means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.

(California Juvenile Court Rule 5.502.)

DISTRICT OF COLUMBIA,

De facto parent means an individual who:

(i) Lived with the child in the same household at the time of the child’s birth or adoption by the child’s parent;

(ii) Has taken on full and permanent responsibilities as the child’s parent; and

(iii) Has held himself or herself out as the child’s parent with the agreement of the child’s parent or, if there are 2 parents, both parents;

Or Who:

(i) Has lived with the child in the same household for at least 10 of the 12 months immediately preceding the filing of the complaint or motion for custody;

(ii) Has formed a strong emotional bond with the child with the encouragement and intent of the child’s parent that a parent-child relationship form between the child and the third party;

(iii) Has taken on full and permanent responsibilities as the child’s parent; and

(iv) Has held himself or herself out as the child’s parent with the agreement of the child’s parent, or if there are 2 parents, both parents.

(District of Columbia Official Code section 16-831-01)

THE COURT OF APPEALS OF WASHINGTON:

an adult who has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life, with the consent of the legal parent in the same household, without expectation of financial compensation, and for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

(In the Matter of the Parentage of J.A.B., 191 P.3d 71 (2008)).


SEARCH AND SEIZURE Schools

state v. c.d.---n.e.2d--- (ind. 2011)

indiana court of appeals

Petitioner–Appellant State of Indiana appeals the trial court’s grant of Respondent–Appellee C.D.’s motion to suppress evidence. The Indiana Court of Appeals reverses and remands. The State raises one issue, which the Indiana high court restates as: whether the trial court erred when it granted C.D.’s motion to suppress evidence.

On January 8, 2010, personnel working in the central office at Mooresville High School received a report from a teacher that a student appeared to be under the influence of some substance. The student, C.D., was brought to the office of Assistant Principal Timothy Vanwanzeele. Vanwanzeele, who had interacted with C.D. on prior occasions, noted that C.D.’s speech and mannerisms were slower than normal. At that point, Vanwanzeele requested the presence of Officer Chad Richhart.

Richhart was a security officer employed by the school system. However, Richhart was also an officer with the Mooresville Police Department, and on that day he was wearing his Mooresville Police Department uniform. When Richhart arrived at Vanwanzeele’s office, Vanwanzeele asked him to examine C.D. to determine whether C.D. was under the influence of drugs. Richhart is a drug recognition evaluator and, by putting an individual through a series of tests, can determine what kind of substance a person may have taken.

The examination took place in Vanwanzeele’s office, and Vanwanzeele, C.D., and Richhart were the only persons present. Richhart observed that C.D. was very lethargic. Furthermore, C.D.’s eyes were bloodshot and his pupils were dilated. The examination took ten minutes. When Richhart was finished, he told Vanwanzeele that he thought C.D. was under the influence of marijuana and had smoked it that day. C.D. stated that he hadn’t smoked marijuana that day but had smoked some the previous night. Vanwanzeele told C.D. he would be suspended from school.

Next, Vanwanzeele searched C.D.’s backpack and discovered two pills that were identified as Adderall, a controlled substance. Vanwanzeele gave the pills to Richhart. Subsequently, Vanwanzeele contacted C.D.’s mother. The State filed a delinquency petition against C.D., alleging that C.D. committed an act that would constitute possession of a controlled substance on school property, a Class C felony, if committed by an adult. C.D. filed a motion to suppress, and the trial court held a hearing. After the hearing, the trial court issued an order ruling inadmissible all evidence obtained from the child prior to the child and parent having an opportunity for meaningful

consultation outside the presence of school officials and the police. Subsequently, the State filed a motion to dismiss the case without prejudice, which the trial court granted. This appeal followed.

C.D.’s motion to suppress raised two claims: (1) Vanwanzeele and Richhart erroneously interrogated C.D. without giving him an opportunity to consult with his parents; and (2) Vanwanzeele erroneously searched C.D.’s backpack without a warrant. The State challenges each point on appeal, and the Indiana Court of Appeals addresses each in turn. Under the Fifth Amendment to the United States Constitution, persons shall be free from being compelled to make disclosures which might subject them to criminal prosecution or aid in their conviction.

In Miranda, the United States Supreme Court established procedural safeguards to protect criminal defendants against compelled disclosure of incriminating statements. However, constitutional protections against self-incrimination can be waived. A section of the Indiana Juvenile Code governs a juvenile’s waiver of his or her rights, and it provides, in relevant part: Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only: (1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins with the waiver; (2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if: (A) that person knowingly and voluntarily waives the right; (B) that person has no interest adverse to the child; (C) meaningful consultation has occurred between that person and the child; and (D) the child knowingly and voluntarily joins with the waiver. Strict compliance is required to safeguard the rights of juveniles. However, the Miranda warnings and the safeguards apply only to a juvenile who is subjected to custodial interrogation.

To determine whether a person is in custody, the Indiana appellate court asks whether a reasonable person under the circumstances would consider himself or herself free to resist the entreaties of the police. Under Miranda, interrogation includes express questioning and words or actions on the part of the police that the police know are reasonably likely to elicit an incriminating response from the suspect. In this case, a school employee brought C.D. to Vanwanzeele’s office.

Vanwanzeele conceded that C.D. was not free to leave after he entered the office, but Vanwanzeele contended that the purpose of his detention of C.D. was to maintain school order by ensuring that an impaired individual was not in the classroom. C.D.’s speech and mannerisms seemed slower than normal to Vanwanzeele, so he summoned Richhart. Richhart, who was in his police uniform, evaluated C.D. for drug influence at Vanwanzeele’s request.

The evaluation consisted of a physical examination and questions about prescription drugs, contact lenses, and medical problems with his hips, legs, knees, or ankles. Richhart told Vanwanzeele that he thought C.D. was under the influence of marijuana and had smoked it that day.


At that point, C.D. asserted that he had smoked marijuana the previous evening but not that day. C.D. was not free to leave Vanwanzeele’s office, but he was detained by Vanwanzeele for an educational purpose, which was to keep possibly intoxicated students out of the classroom. Furthermore, C.D. admitted to drug use without being directly questioned on that point by Richhart or Vanwanzeele. After the examination, Vanwanzeele told C.D. he would be suspended from school, which further demonstrates that C.D.’s examination was intended to carry out an educational function or school purpose, not to further a criminal investigation.

The Indiana Court of Appeals notes that in C.D.’s case, C.D. was examined by a school security officer in police uniform rather than a school administrator. Under the circumstances of this case, the Indiana Court of Appeals concludes that this difference is not significant. Richhart was not independently investigating the matter. Instead, Richhart examined C .D. at Vanwanzeele’s request and in Vanwanzeele’s presence. Furthermore, after the examination was complete, Vanwanzeele did not immediately ask Richhart to take C.D. into custody but instead advised C.D. that he would be suspended.

This evidence indicates that Richhart was acting to fulfill an educational purpose. Therefore, the fact that Richhart, rather than Vanwanzeele, examined and questioned C.D. did not transform the examination into a custodial interrogation. Consequently, the Indiana Court of Appeals concludes that C.D. was not undergoing custodial interrogation when he answered Richhart’s questions and made an incriminating admission, and the Miranda warnings and safeguards in the Indiana Juvenile Code are inapplicable here. Thus, C.D. was not deprived of his right to meaningful consultation with his parents when Richhart examined him.

School children have a legitimate expectation of privacy in items of personal property carried on campus. Where, as here, a school official initiates a search of a student’s personal property, the search must be reasonable under the circumstances. To determine whether a school search is reasonable under the Fourth Amendment, the Indiana Court of Appeals considers: (1) whether the action was justified at its inception; and (2) whether the search conducted was reasonably related in scope to the circumstances that justified the interference in the first place.

In this case, C.D. appeared impaired to Vanwanzeele, and Richhart told Vanwanzeele that he thought that C.D. was under the influence of marijuana and had smoked it that day. Based on this information, a search of C.D.’s backpack for controlled substances was justified, and the search was reasonably related in scope to the circumstances. Having been informed that C.D. was, in Richhart’s opinion, presently under the influence of marijuana, it was reasonable for Vanwanzeele to check C.D.’s backpack for more marijuana or for paraphernalia. The Indiana Court of Appeals concludes that the State has demonstrated prima facie error, and the trial court’s suppression of all evidence obtained prior to C.D.’s consultation with his parents is contrary to law.

For the reasons stated above, the Indiana Court of Appeals reverses the judgment of the trial court and remand for further proceedings consistent with this opinion. Held that: school assistant principal and officer were not required to provide juvenile with opportunity for meaningful consultation with parent or guardian prior to questioning; and search of juvenile student’s backpack for marijuana or paraphernalia upon determination that he was under influence of controlled substance and had likely smoked marijuana that day was reasonable. Superior Court, Morgan County reversed and remanded.

Frequently Asked QuestionsQ: in indiana can a juvenile waive his or her constitutional rights?

A: Yes, a section of the Indiana Juvenile Code governs a juvenile’s waiver of his or her rights, and it provides, in relevant part:

Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only:

(1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins with the waiver;

(2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if: (A) that person knowingly and voluntarily waives the right; (B) that person has no interest adverse to the child; (C) meaningful consultation has occurred between that person and the child; and (D) the child knowingly and voluntarily joins with the waiver.

(Indiana Code, section 31-32-5-1)

However, the Miranda warnings and the safeguards apply only to a juvenile who is subjected to custodial interrogation. To determine whether a person is in custody, the Indiana appellate court asks whether a reasonable person under the circumstances would consider himself or herself free to resist the entreaties of the police.


SUPPORT Right to Counselturner v. rogers

---s.ct.--- (s.c., 2011)united states supreme court

South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are: (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so.

In this case, the United States Supreme Court must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration.

The United States Supreme Court concludes that where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But the nation’s high court attaches an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.

South Carolina Family Courts enforce their child support orders in part through civil contempt proceedings. Each month the Family Court clerk reviews outstanding child support orders, identifies those in which the supporting parent has fallen more than five days behind, and sends that parent an order to show cause why he should not be held in contempt. The show cause order and attached affidavit refer to the relevant child support order, identify the amount of the arrearage, and set a date for a court hearing. At the hearing that parent may demonstrate that he is not in contempt, say, by showing that he is not able to make the required payments. If he fails to make the required showing, the court may hold him in civil contempt. And it may require that he be imprisoned unless and until he purges himself of contempt by making the required child support payments (but not for more than one year regardless).

In June 2003, a South Carolina Family Court entered an order, which (as amended) required petitioner, Michael Turner, to pay $51.73 per week to respondent, Rebecca Rogers, to help support their child. (Rogers’ father, Larry Price, currently has custody of the child and is also a respondent before this Court.) Over the next three years, Turner repeatedly failed to pay the amount due and was held in contempt on five occasions. The first four times he was sentenced to 90 days’ imprisonment, but he ultimately paid the amount due (twice without being jailed, twice after spending two or three days in custody). The fifth

time he did not pay but completed a 6–month sentence. After his release in 2006 Turner remained in arrears. On March 27, 2006, the clerk issued a new show cause order. And after an initial postponement due to Turner’s failure to appear, Turner’s civil contempt hearing took place on January 3, 2008. Turner and Rogers were present, each without representation by counsel.

The hearing was brief. The court clerk said that Turner was $5,728.76 behind in his payments. After a brief discussion of federal benefits, the judge stated: If there’s nothing else, this will be the Order of the Court. I find the Defendant in willful contempt. I’m going to sentence him to twelve months in the Oconee County Detention Center. He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release. I’ve also placed a lien on any SSI or other benefits.

The court made no express finding concerning Turner’s ability to pay his arrearage (though Turner’s wife had voluntarily submitted a copy of Turner’s application for disability benefits). Nor did the judge ask any follow-up questions or otherwise address the ability-to-pay issue. While serving his 12–month sentence, Turner, with the help of pro bono counsel, appealed. He claimed that the Federal Constitution entitled him to counsel at his contempt hearing.

The South Carolina Supreme Court decided Turner’s appeal after he had completed his sentence. And it rejected his right to counsel claim. The South Carolina Supreme Court pointed out that civil contempt differs significantly from criminal contempt. The former does not require all the constitutional safeguards applicable in criminal proceedings. And the right to government-paid counsel, the South Carolina Supreme Court held, was one of the safeguards not required. Turner sought certiorari.

In light of differences among state courts (and some federal courts) on the applicability of a right to counsel in civil contempt proceedings enforcing child support orders, the United States Supreme Court granted the writ. For example, New Jersey, Delaware, Michigan, and Texas all find a federal constitutional right to counsel for indigents facing imprisonment in a child support civil contempt proceeding. In Nevada, the rule is: no right to counsel in civil contempt hearing for nonsupport, except in the rarest of cases. Florida’s rule is: there are no circumstances in which a parent is entitled to court-appointed counsel in a civil contempt proceeding for failure to pay child support. In New Hampshire, it is not a general right, but counsel may be required on a case-by-case basis.

Respondents argue that this case is moot. They point out that Turner completed his 12–month prison sentence in 2009. And they add that there are no collateral consequences of that particular contempt determination that might keep the dispute alive. The short, conclusive answer to respondents’ mootness claim, however, is that this case is not moot because


it falls within a special category of disputes that are capable of repetition while evading review.

A dispute falls into that category, and a case based on that dispute remains live, if: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.

The challenged action, Turner’s imprisonment for up to 12 months, is in its duration too short to be fully litigated through the state courts (and arrive here) prior to its expiration. At the same time, there is a more than reasonable likelihood that Turner will again be subjected to the same action. Turner has frequently failed to make his child support payments. He has been the subject of several civil contempt proceedings. He has been imprisoned on several of those occasions. Within months of his release from the imprisonment here at issue he was again the subject of civil contempt proceedings. And he was again imprisoned, this time for six months.

As of December 9, 2010, Turner was $13,814.72 in arrears, and another contempt hearing was scheduled for May 4, 2011. These facts bring this case squarely within the special category of cases that are not moot because the underlying dispute is capable of repetition, yet evading review.

The United States Supreme Court must decide whether the Due Process Clause grants an indigent defendant, such as Turner, a right to state-appointed counsel at a civil contempt proceeding, which may lead to his incarceration. The United States Supreme Court’s precedents provide no definitive answer to that question.

The nation’s high court has long held that the Sixth Amendment grants an indigent defendant the right to state-appointed counsel in a criminal case. And the United States Supreme Court has also held that this same rule applies to criminal contempt proceedings (other than summary proceedings). But the Sixth Amendment does not govern civil cases.

Civil contempt differs from criminal contempt in that it seeks only to coerce the defendant to do what a court had previously ordered him to do. A court may not impose punishment in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order. And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free. Civil contempt proceedings in child support cases constitute one part of a highly complex system designed to assure a noncustodial parent’s regular payment of funds typically necessary for the support of his children.

Often the family receives welfare support from a state-administered federal program, and the State then seeks reimbursement from the noncustodial parent. Other times the custodial parent (often the mother, but sometimes the father, a

grandparent, or another person with custody) does not receive government benefits and is entitled to receive the support payments herself.

The Federal Government has created an elaborate procedural mechanism designed to help both the government and custodial parents to secure the payments to which they are entitled. These systems often rely upon wage withholding, expedited procedures for modifying and enforcing child support orders, and automated data processing.

But sometimes States will use contempt orders to ensure that the custodial parent receives support payments or the government receives reimbursement. Although some experts have criticized this last-mentioned procedure, and the Federal Government believes that the routine use of contempt for non-payment of child support is likely to be an ineffective strategy, the Government also tells us that coercive enforcement remedies, such as contempt, have a role to play. South Carolina, which relies heavily on contempt proceedings, agrees that they are an important tool.

The United States Supreme Court here considers an indigent’s right to paid counsel at such a contempt proceeding. It is a civil proceeding. And the nation’s high court consequently determine the specific dictates of due process by examining the distinct factors that it has previously found useful in deciding what specific safeguards the Constitution’s Due Process Clause requires in order to make a civil proceeding fundamentally fair.

As relevant here those factors include: (1) the nature of the private interest that will be affected; (2) the comparative risk of an erroneous deprivation of that interest with and without additional or substitute procedural safeguards; and (3) the nature and magnitude of any countervailing interest in not providing additional or substitute procedural requirements.

The private interest that will be affected argues strongly for the right to counsel that Turner advocates. That interest consists of an indigent defendant’s loss of personal liberty through imprisonment. The interest in securing that freedom, the freedom from bodily restraint, lies at the core of the liberty protected by the Due Process Clause. And the United States Supreme Court has made clear that its threatened loss through legal proceedings demands due process protection.

Given the importance of the interest at stake, it is obviously important to assure accurate decision-making in respect to the key ability to pay question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt, reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.


Currently, there is no agreement among the various courts on the issue of right to counsel in civil contempt proceedings enforcing child support orders. There is no agreement because at the time of the 2011 United States Supreme Court decision, there were differences among state courts (and some federal courts) on the applicability of a right to counsel in civil contempt proceedings enforcing child support orders.

For example, New Jersey, Delaware, and Michigan all found a federal constitutional right to counsel for indigents facing imprisonment in a child support civil contempt proceeding.

Nevada found no right to counsel in a civil contempt hearing for nonsupport, except in the rarest of cases.

In Florida, it was held that there were no circumstances in which a parent is entitled to court-appointed counsel in a civil contempt proceeding for failure to pay child support.

And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often. On the other hand, the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened. And in determining whether the Clause requires a right to counsel here, the United States Supreme Court must take account of opposing interests, as well as consider the probable value of additional or substitute procedural safeguards.

Doing so, the United States Supreme Court finds three related considerations that, when taken together, argue strongly against the Due Process Clause requiring the State to provide indigents with counsel in every proceeding of the kind before it.

First, the critical question likely at issue in these cases concerns, as we have said, the defendant’s ability to pay. That question is often closely related to the question of the defendant’s indigence. But when the right procedures are in place, indigence can be a question that in many—but not all—cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal case.

Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. The custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel. Yet she may have encouraged the court to enforce its order through contempt. She may be able to provide the court with significant information. And the proceeding is ultimately for her benefit. A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would alter significantly the nature of the proceeding. Doing so could mean a degree of formality or delay that would unduly slow payment to those

immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. The needs of such families play an important role in the high court’s analysis.

Third, as the Solicitor General points out, there is available a set of substitute procedural safeguards, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel.

Those safeguards include: (1) notice to the defendant that his ability to pay is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. In presenting these alternatives, the Government draws upon considerable experience in helping to manage statutorily mandated federal-state efforts to enforce child support orders.

It does not claim that they are the only possible alternatives, and this Court’s cases suggest, for example, that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient. But the Government does claim that these alternatives can assure the fundamental fairness of the proceeding even where the State does not pay for counsel for an indigent defendant.

While recognizing the strength of Turner’s arguments, the United States Supreme Court ultimately believes that the three considerations it has just discussed must carry the day. In its view, a categorical right to counsel in proceedings of the kind before it would carry with it disadvantages (in the form of

Did You Know?


unfairness and delay) that, in terms of ultimate fairness, would deprive it of significant superiority over the alternatives that it has mentioned.

The United States Supreme Court consequently holds that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).

In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those it has mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).

The United States Supreme Court does not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. Those proceedings more closely resemble debt-collection proceedings.

The government is likely to have counsel or some other competent representative. And this kind of proceeding is not before the nation’s high court. Neither does the United States Supreme Court address what due process requires in an unusually complex case where a defendant can fairly be represented only by a trained advocate.

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant finding section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated.

Under these circumstances Turner’s incarceration violated the Due Process Clause.

The United States Supreme Court vacates the judgment of the South Carolina Supreme Court and remands the case for further proceedings not inconsistent with this opinion.

Held that: fact that father completed his prison sentence did not render moot his claim that he was entitled to counsel at his civil contempt hearing for failure to pay child support; Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration for up to a year; father’s incarceration violated the Due Process Clause.

Judgment of South Carolina Supreme Court vacated and case remanded. It is so ordered.

A dissenting opinion argues: The Due Process Clause of the Fourteenth Amendment does not provide a right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. Therefore, I would affirm.

Although the Court agrees that appointed counsel was not required in this case, it nevertheless vacates the judgment of the South Carolina Supreme Court on a different ground, which the parties have never raised. Solely at the invitation of the United States as amicus curiae, the majority decides that Turner’s contempt proceeding violated due process because it did not include alternative procedural safeguards.

Consistent with the United States Supreme Court’s longstanding practice, the dissenter would not reach that question.

The only question raised in this case is whether the Due Process Clause of the Fourteenth Amendment creates a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings. The dissent argues that: It does not.

Under an original understanding of the Constitution, there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil contempt proceedings. Indeed, Turner concedes that contempt proceedings without appointed counsel have the blessing of history. Even under the Court’s modern interpretation of the Constitution, the Due Process Clause does not provide a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings.

Such a reading would render the Sixth Amendment right to counsel—as it is currently understood—superfluous. Moreover, it appears that even cases applying the Court’s modern interpretation of due process have not understood it to categorically require appointed counsel in circumstances outside those otherwise covered by the Sixth Amendment.

Under the Court’s current jurisprudence, the Sixth Amendment entitles indigent defendants to appointed counsel in felony cases and other criminal cases resulting in a sentence of imprisonment.

Turner concedes that, even under these cases, the Sixth Amendment does not entitle him to appointed counsel. He argues instead that the right to the assistance of counsel for persons facing incarceration arises not only from the Sixth Amendment, but also from the requirement of fundamental fairness under the Due Process Clause of the Fourteenth Amendment.

In his view, the United States Supreme Court has relied on due process to reject formalistic distinctions between criminal and civil proceedings, instead concluding that incarceration


or other confinement triggers the right to counsel. But if the Due Process Clause created a right to appointed counsel in all proceedings with the potential for detention, then the Sixth Amendment right to appointed counsel would be unnecessary.

Under Turner’s theory, every instance in which the Sixth Amendment guarantees a right to appointed counsel is covered also by the Due Process Clause. The Sixth Amendment, however, is the only constitutional provision that even mentions the assistance of counsel; the Due Process Clause says nothing about counsel.

Ordinarily, we do not read a general provision to render a specific one superfluous. Despite language in its opinions that suggests it could find otherwise, the Court’s consistent judgment has been that fundamental fairness does not categorically require appointed counsel in any context outside of criminal proceedings.

The majority is correct, therefore, that the Court’s precedent does not require appointed counsel in the absence of a deprivation of liberty. But a more complete description of this Court’s cases is that even when liberty is at stake, the Court has required appointed counsel in a category of cases only where it would have found the Sixth Amendment required it—in criminal prosecutions.

The majority agrees that the Constitution does not entitle Turner to appointed counsel. But at the invitation of the Federal Government as amicus curiae, the majority holds that his contempt hearing violated the Due Process Clause for an entirely different reason, which the parties have never raised: The Family Court’s procedures “were inadequate to ensure an accurate determination of Turner’s present ability to pay.

The dissent would not reach this issue. There are good reasons not to consider new issues raised for the first and only time in an amicus brief.

As here, the new issue may be outside the question presented.

As here, the new issue may not have been addressed by, or even presented to, the state court.

As here, the parties may not have preserved the issue, leaving the record undeveloped.

As here, the parties may not address the new issue in this Court, leaving its boundaries untested.

Finally, as here, a party may even oppose the position taken by its allegedly supportive amicus.

Accordingly, it is the wise and settled general practice of the United States Supreme Court not to consider an issue in the first instance, much less one raised only by an amicus.

The majority errs in moving beyond the question that was litigated below, decided by the state courts, petitioned to the United States Supreme Court, and argued by the parties here, to resolve a question raised exclusively in the Federal Government’s amicus brief.

It transforms a case entirely to vacate a state court’s judgment based on an alternative constitutional ground advanced only by an amicus and outside the question on which the petitioner sought (and the United States Supreme Court granted) review.

When fathers fail in their duty to pay child support, children suffer. The interests of children and mothers who depend on child support are notoriously difficult to protect. That some fathers subject to a child support agreement report little or no income does not mean they do not have the ability to pay any child support.

Rather, many deadbeat dads opt to work in the underground economy to shield their earnings from child support enforcement efforts. Because of the difficulties in collecting payment through traditional enforcement mechanisms, many States also use civil contempt proceedings to coerce deadbeats into paying what they owe. The States that use civil contempt with the threat of detention find it a highly effective tool for collecting child support when nothing else works. Other States confirm that the mere threat of imprisonment is often quite effective because most contemnors will pay rather than go to jail.

Although the dissent thinks that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, the dissent does not pass on the wisdom of the majority’s preferred procedures.

Nor does the dissent address the wisdom of the State’s decision to use certain methods of enforcement. Whether deadbeat dads should be threatened with incarceration is a policy judgment for state and federal lawmakers, as is the entire question of government involvement in the area of child support. This and other repercussions of the shift away from the nuclear family are ultimately the business of the policymaking branches.

The dissent would affirm the judgment of the South Carolina Supreme Court because the Due Process Clause does not provide a right to appointed counsel in civil contempt hearings that may lead to incarceration. As that is the only issue properly before the United States Supreme Court, the dissenter respectfully dissents.


NCJFCJ UPCOMING EVENTS

July 24 - 27, 2011New York, NY74th Annual Conference

September 19 - 23, 2011Reno, NVEvidence in Juvenile and Family Courts September 19 - 23, 2011Reno, NVCore College: Role of the Juvenile Court Judge

October 24 - 27, 2011Reno, NVManaging Challenging Family Law Cases

March 21 - 24, 2012Las Vegas, NVNational Conference on Juvenile and Family Law

for more information on any of these events, please visit ncjfcj’s web site, www.ncjfcj.org.

27Juvenile and Family Law Digest / june 2011

Your NCJFCJ Membership Just Got Better — New, Up-To-The-Minute Service for Members

As of July 2011, when the United States Supreme Court hands down an opinion on juvenile or family law, members will be e-mailed an NCJFCJ Issue Alert – a one-page summary of the opinion, within five business days. A much more detailed excerpt of the opinion will then appear in the next issue of the Juvenile and Family Law Digest.

Thus far, the following Issue Alerts have been sent:

Age of juvenile and Miranda rights•

Right to Counsel in Civil Contempt Child Support Enforcement Cases•

Constitutionality of California Violent Video Game Laws•

Retroactively Applying Sex Offender Registration and Notification Act to Juveniles•

ANNOUNCING NEW NCJFCJ ISSUE ALERT


Hon. R. Michael KeyNCJFCJ President

LaGrange, Georgia

Mari Kay Bickett, J.D.Executive Director

Reno, Nevada

EDITORIAL STAFFeditor

Linda A. Szymanski, Esq.NCJJ

Pittsburgh, PA

production assistantsKristy Bronson Connors

Lora LeddyNCJJ

Pittsburgh, PA

juvenile and family law digest (issn 0279-2257) is produced monthly by the national center for Juvenile Justice (ncjj), the research division of the national council of juvenile and family court judges. ncjj is located in pittsburgh, pa. if you are interested in subscribing to this publication, please contact dorothy hall at [email protected] or 775-784-1548. yearly subscription rate is $160. further research on any of these issues is available for a fee. if interested, please contact linda szymanski at the ncjj at [email protected] or 412-246-0838.

copyright 2011 by the national council of juvenile and family court judges.

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