Does the court have authority over parents of juveniles who are respondents in delinquency matters once the juvenile turns 18? This question has come up repeatedly as practitioners across North Carolina continue to implement the Juvenile Jurisdiction Reinvestment Act (JJRA), the law that brought the vast majority of youth who commit offenses at ages 16 and 17 under juvenile court jurisdiction. The short answer is—yes. However, that fact does not mean that this jurisdictional law is without complications. This blog explains why the new jurisdictional laws have led to increased numbers of 18- and 19-year-olds under juvenile court jurisdiction, the court’s authority over the parents of those youth, and complications related to this jurisdictional authority over parents of people who are legally adults. Continue reading
Tag Archives: parents
Must a parent testify against his or her child when called as a witness? Conversely, must a child testify against his or her parent? The answer depends on whether there is a parent-child privilege.
No North Carolina case, statute, or rule. I couldn’t quickly find a North Carolina case or statute on point. So I don’t think that there’s a statutory privilege, and I don’t think our appellate courts have ruled on whether there is a common law privilege. Evidence Rule 501 concerns privileges, but it just says that questions of privilege should be determined in accordance with state law. It doesn’t attempt to list or define the permitted privileges.
Recent Fourth Circuit case. Yesterday, the Fourth Circuit decided a case on point. In Under Seal v. United States, __ F.3d __, 2014 WL 2699722 (4th Cir. June 16, 2014), the Government suspected a man of growing drugs in his home and of possessing illegal firearms, including automatic weapons. It subpoenaed his 19-year-old son, who lived with him, to testify before a grand jury. The son moved to quash the subpoena, arguing that he should be allowed to refuse to testify based on the parent-child privilege. Forcing him to testify, he contended, would create the perception that he was responsible for his father’s prosecution. He argued that “[t]he damage to the father-son relationship [would be] as certain as it is incalculable.” The district court agreed, ruling that a parent-child privilege should be available on a case-by-case basis and that the child in this case should be allowed to claim the privilege because he was relatively young and was financially dependent on his father.
The Fourth Circuit ruled that no such privilege should be recognized in this case. First, it noted that privileges should not be recognized easily, as they conflict with the principle that the law is entitled to every person’s evidence. Second, it observed that while a few state courts and federal district courts have recognized such a privilege, no federal court of appeals has done so while several have rejected it. Finally, it pointed out facts of this case that undercut the claim of privilege, including that the witness is an “adult college student” rather than a young child, and that the witness and his siblings might be at risk from the father’s allegedly illegal activities. The court left the door open to the possibility of recognizing the privilege in a future case with more favorable facts.
Further reading. Those interested in learning more about this issue might consider reading Maureen P. O’Sullivan, An Examination of the State and Federal Courts’ Treatment of the Parent-Child Privilege, 39 Cath. Lawyer 201 (1999) (collecting authorities; acknowledging that most courts in the United States have not recognized the privilege; noting that some other countries do recognize it; and arguing that the rationale for a such a privilege is at least as strong as that for a priest-penitent privilege and other accepted privileges). This ABA article suggests that only four states have recognized such a privilege, but it is an older piece so it may or may not be accurate today.
Additional thoughts. Based on the foregoing, my guess is that a claim of parent-child privilege would face an uphill battle in North Carolina. The claim would be strongest if the case involved a minor child who lived with and was dependent on the parent, and if the criminal activity under investigation did not pose a threat to the child’s safety or well-being. The claim might also be more likely to prevail if the evidence sought concerned a communication between the parent and child that arguably was based on the closeness of the relationship. Communications from the child to the parent might be more likely to be protected than communications from the parent to the child. Cf. Minn. Stat. 595.02(j) (providing that “[a] parent or the parent’s minor child may not be examined as to any communication made in confidence by the minor to the minor’s parent.”).
If you have litigated this issue or have thoughts about whether such a privilege should be recognized, and under what circumstances, please post a comment.
It was Father’s Day this Sunday, so it’s a good time for a post about family relationships. As a jumping off point, I’ll use a case that was recently highlighted in one of the clipping services to which I subscribe. The case is State v. Hubert, __ S.W.2d __, 2010 WL 2077166 (Tex. Ct. Crim. App. May 26, 2010), and the basic facts are as follows.
The defendant was on parole and lived with his grandfather. The grandfather told the defendant’s parole officer that the defendant was violating the terms of his parole by “driving without a license, [leaving] the state, and [possessing] firearms.” Officers arrested the defendant on the front porch of the grandfather’s house, then asked the grandfather for consent to search the home. The grandfather gave consent, and opened the door of the defendant’s bedroom for the officers, who found guns and ammunition in the room.
The defendant was charged with possession of a firearm by a felon, and he moved to suppress, contending that his grandfather lacked authority to consent to a search of the defendant’s room. The motion was denied by the trial court, but after the defendant was convicted, an intermediate appellate court reversed. The Texas Court of Criminal Appeals, however, reversed again and reinstated the defendant’s conviction.
The court noted that some cases “have followed the view that, when two autonomous adults jointly occupy a dwelling and have separate bedrooms, each occupant generally has a higher expectation of privacy in his or her own bedroom,” and consent by the other occupant is insufficient to support a search of the bedroom. In effect, these cases have created a rebuttable presumption that joint occupants of a residence lack authority to consent to a search of one another’s bedrooms. The Hubert court, however, rejected this view. Noting that the issue of authority to consent to search is “always a fact-specific inquiry,” the court seemed effectively to adopt the reverse presumption: at least where the joint occupants are closely related, the court was inclined to “presume that [each] relative has sufficient common authority over the [other’s] bedroom to authorize [a] search.”
The court further appeared to conclude that the grandfather was the sole owner of the house; that the defendant was not paying rent; and that there were no “indici[a] of exclusion,” such as a lock on the door, that suggested that the defendant’s situation was not subject to the presumption of common authority.
Hubert is in the mainstream of cases in this area. See generally 4 Wayne R. LaFave, Search and Seizure § 8.4(b) (4th ed. 2004) (stating that the “overwhelming majority” of cases hold that a parent’s consent suffices to search a child’s room, even if the child is not a minor); Robert L. Farb, Arrest, Search, and Investigation in North Carolina 80 (3rd ed. 2003) (“Generally, a parent has the authority to consent to a search of a child’s room,” but noting that such authority “may be less likely” if the child is not a minor); United States v. Rith, 164 F.3d 1323 (10th Cir. 1999) (upholding parent’s authority to consent to search of eighteen-year-old’s room); State v. Moore, 316 N.C. 328 (1986) (strongly suggesting that a mother’s consent was sufficient to support the search of her adult son’s room, but also holding that the son failed properly to preserve the issue for appeal). That said, these can be complicated, fact-intensive cases. The older the “child,” the more private the room, and the more the child looks like a tenant, the less likely a court is to find that the parent has the authority to consent to a search.
