Handout 1 - School of Government - University of North Carolina at ...
Handout 1 - School of Government - University of North Carolina at ...
Handout 1 - School of Government - University of North Carolina at ...
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2. th<strong>at</strong> respondent received mental health tre<strong>at</strong>ment and th<strong>at</strong> while testifying he was weeping, crying,<br />
confounded, agit<strong>at</strong>ed, st<strong>at</strong>ed he wished someone would take his life, and st<strong>at</strong>ed th<strong>at</strong> he did not know<br />
why he was present <strong>at</strong> the adjudic<strong>at</strong>ory hearing.<br />
3. th<strong>at</strong> respondent thre<strong>at</strong>ened suicide after the petition was filed.<br />
4. th<strong>at</strong> respondent was mentally and emotionally unstable.<br />
The court ordered respondent to have a psychological evalu<strong>at</strong>ion, suspended visit<strong>at</strong>ion until DSS had the<br />
results <strong>of</strong> the evalu<strong>at</strong>ion, and authorized DSS then to determine wh<strong>at</strong> supervised visit<strong>at</strong>ion respondent<br />
would have.<br />
Held: Reversed and remanded.<br />
1. Although appointment <strong>of</strong> a guardian ad litem for an adult parent under G.S. 7B-602 is in the court’s<br />
discretion, given the evidence and findings rel<strong>at</strong>ing to respondent’s condition, the trial court abused<br />
its discretion by not conducting a hearing to determine whether a guardian ad litem for respondent<br />
should be appointed pursuant to G.S. 1A-1, Rule 17.<br />
2. The court erred in deleg<strong>at</strong>ing to DSS decisions regarding respondent’s visit<strong>at</strong>ion rights.<br />
Adjudic<strong>at</strong>ory Evidence<br />
• The rape shield law, G.S. 8C-1, Rule 412, can apply in civil cases to render most evidence <strong>of</strong> a<br />
victim’s sexual history inadmissible.<br />
• Evidence <strong>of</strong> a false alleg<strong>at</strong>ion is not excluded by Rule 412, which addresses only sexual activity.<br />
• Rule 12 does not preclude introduction <strong>of</strong> a victim’s inconsistent st<strong>at</strong>ements for impeachment.<br />
In re K.W., ___ N.C. App. ___, 666 S.E.2d 490 (9/16/08).<br />
http://www.aoc.st<strong>at</strong>e.nc.us/www/public/coa/opinions/2008/080535-1.htm<br />
Facts: The 13-year-old juvenile reported to a school counselor th<strong>at</strong> her f<strong>at</strong>her had been raping her for the<br />
past year. After the f<strong>at</strong>her viol<strong>at</strong>ed a protection plan by returning to the home, DSS filed a petition and<br />
obtained nonsecure custody. Based on the juvenile’s testimony and testimony by a doctor, the court<br />
adjudic<strong>at</strong>ed the juvenile to be abused, neglected, and dependent. On appeal, respondent f<strong>at</strong>her argued th<strong>at</strong><br />
the trial court erred by excluding from evidence a police report filed by the juvenile’s mother five years<br />
earlier, which said “sexual assault,” and on which an <strong>of</strong>ficer had written th<strong>at</strong> there was doubt as to<br />
whether the juvenile was telling the truth. The report included no other inform<strong>at</strong>ion and had become<br />
inactive. Respondent also asserted error based on the court’s exclusion from evidence <strong>of</strong> the juvenile’s<br />
Myspace website, which included provoc<strong>at</strong>ive pictures <strong>of</strong> the juvenile and indic<strong>at</strong>ed th<strong>at</strong> she had “had<br />
sex,” which contradicted her st<strong>at</strong>ements to police and her testimony.<br />
Held: Affirmed.<br />
1. Although G.S. 8C-1, Rule 412, is written with reference to criminal proceedings, it can be applied in<br />
a civil case to exclude evidence <strong>of</strong> a victim’s sexual conduct th<strong>at</strong> does not fall within an exception to<br />
the rule.<br />
2. The five-year-old police report did not involve sexual activity and should not have been excluded<br />
based on Rule 412, which does not apply to false alleg<strong>at</strong>ions. However, the report was properly<br />
excluded because it had no prob<strong>at</strong>ive value – it included no specific inform<strong>at</strong>ion, did not indic<strong>at</strong>e the<br />
n<strong>at</strong>ure <strong>of</strong> the alleged assault, and did not indic<strong>at</strong>e who had doubt about the then 8-year-old child’s<br />
veracity.<br />
3. Evidence <strong>of</strong> the Myspace page should have been admitted for impeachment purposes, but not as<br />
substantive evidence th<strong>at</strong> someone else caused the physical trauma to the juvenile. Failure to allow it<br />
into evidence was harmless, however, because respondent did not show th<strong>at</strong> the outcome would have<br />
been different if it had been admitted.<br />
4. In addition to abuse, the evidence supported adjudic<strong>at</strong>ions <strong>of</strong> neglect, because the home was an<br />
injurious environment, and dependency, because the parents refused to abide by the safety plan.<br />
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