An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-565 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
IN THE MATTER OF: Mecklenburg County A.F. No. 11 JB 212
Appeal by juvenile from orders entered 3 July 2012 and 8
October 2012 by Judge Regan A. Miller in Mecklenburg County
District Court. Heard in the Court of Appeals 21 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General Lora C. Cubbage, for the State.
Don Willey for juvenile-appellant.
GEER, Judge.
A.F., a juvenile, appeals from a disposition order
committing him to the Department of Juvenile Justice following
his violation of the terms of his probation after he was
adjudicated delinquent. The juvenile's sole argument on appeal
is that the trial court's written finding that the juvenile has
a history of "AWOL behavior" does not constitute a "compelling
reason" within the meaning of N.C. Gen. Stat. § 7B-2605 (2013) -2- sufficient to justify the denial of his release pending his
appeal of his disposition order.
Because the juvenile has failed to make any argument
regarding the underlying disposition order, he cannot show that
he was prejudiced in any way by the denial of his release
pending an appeal that he has effectively abandoned. In any
event, we hold that under the facts of this case, the trial
court's written finding complied with N.C. Gen. Stat. § 7B-2605.
Accordingly, we affirm.
Facts
On 19 September 2011, the juvenile entered an admission to
three class H felonies and a misdemeanor and was adjudicated
delinquent. He was sentenced as a level two offender and placed
on probation for 12 months. On 6 December 2011, the juvenile
admitted to committing financial card transaction theft and was
again adjudicated delinquent. By request of the court
counselor, no disposition was entered. Instead, the juvenile
continued on probation according to the terms of the 19
September 2011 disposition order.
On 31 May 2012, the juvenile's court counselor filed a
motion for review alleging that the juvenile had violated the
terms and conditions of his probation by leaving his foster home
without cause or permission on 27, 28, and 30 May 2012 and by -3- being suspended from school. At the hearing on 3 July 2012, the
juvenile admitted to the violations. The trial court entered an
adjudication order finding that the juvenile had violated the
terms of his probation, but the court continued the disposition
on the motion for review in order to monitor the juvenile's
behavior and determine if remaining in the community was in his
best interest.
Pending the next hearing and entry of a disposition on the
motion for review, the court ordered the juvenile to continue to
abide by the terms of his probation. In addition to the written
order, the judge specifically warned the juvenile during the
hearing that if he violated the terms and conditions of his
probation, including leaving his foster home without permission,
he would be detained and sent to training school.
Two months later, on 7 September 2012, the juvenile's
foster mother requested to have the juvenile removed from her
home due to his disrespectful behavior, constant AWOL, threats,
and accusations that her husband, the foster father, had pushed
the juvenile. The juvenile was placed in a different foster
home on 28 September 2012.
At the disposition hearing on the motion for review
conducted on 8 October 2012, the trial court considered the
juvenile's predisposition report, risk assessment, and needs -4- assessment and heard the testimony of the juvenile, the
juvenile's biological mother and father, and the court
counselor. The court counselor recommended that the juvenile's
"probation be terminated unsuccessful or [he] be sent to the
Youth Development Center." The court counselor's report noted
that although the juvenile had been doing well in his
therapeutic foster care placement, the juvenile, following the 3
July 2012 hearing, began engaging in negative behaviors and on
two occasions "went AWOL," leaving the home without permission
and going to the Relatives, an emergency shelter for teens.
At the close of the hearing, the trial court indicated it
would impose a level three disposition and "go ahead and commit
him into the custody of the Department of Juvenile Justice."
The juvenile gave oral notice of appeal, but did not request
release pending appeal. The same day, 8 October 2012, the court
filed a written disposition and commitment order.
The court filed an amended disposition order on 16 October
2012. The amended order stated the juvenile had been
adjudicated delinquent on 19 September 2011 for felony breaking
and entering and indicated that this constituted a violent or
serious offense for which a level three disposition was
authorized under N.C. Gen. Stat. § 7B-2508 (2013). The court
ordered that the juvenile be committed to the Department of -5- Juvenile Justice and Delinquency Prevention for a minimum period
of six months and an indefinite commitment thereafter not to
extend past the juvenile's 18th birthday.
Discussion
The juvenile's sole argument on appeal is that the trial
court did not make sufficient findings regarding why the
juvenile's release was denied pending appeal. N.C. Gen. Stat. §
7B-2605 provides:
Pending disposition of an appeal, the release of the juvenile, with or without conditions, should issue in every case unless the court orders otherwise. For compelling reasons which must be stated in writing, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile or the State.
(Emphasis added.)
"In other words, pending his appeal the juvenile must be
released unless the judge enters a written order to the
contrary, stating the reasons for commitment pending appeal."
In re Bass, 77 N.C. App. 110, 117, 334 S.E.2d 779, 783 (1985).
In this case, the judge marked box number three on the Appellate
Entries form indicating that "[r]elease of the juvenile pursuant
to G.S. 7B-2605 is denied." In the space provided to note
"[c]ompelling reasons," the judge wrote "juvenile has a history
of AWOL behavior." The juvenile contends that his "AWOL -6- behavior" does not constitute a "compelling reason" sufficient
to justify his commitment pending his appeal.
The juvenile cannot, however, show that he has been
prejudiced by this alleged error. This Court has recognized
that although "juveniles should be afforded the protection of
each of the procedural safeguards provided by the North Carolina
Juvenile Code[,]" the burden is on the juvenile to show "a
reasonable possibility that a different result would have been
reached" but for the error. In re Bass, 77 N.C. App. at 115,
334 S.E.2d at 782.
In Bass, the juvenile argued, as in this case, that he
should have been released pending appeal because the trial court
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-565 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
IN THE MATTER OF: Mecklenburg County A.F. No. 11 JB 212
Appeal by juvenile from orders entered 3 July 2012 and 8
October 2012 by Judge Regan A. Miller in Mecklenburg County
District Court. Heard in the Court of Appeals 21 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General Lora C. Cubbage, for the State.
Don Willey for juvenile-appellant.
GEER, Judge.
A.F., a juvenile, appeals from a disposition order
committing him to the Department of Juvenile Justice following
his violation of the terms of his probation after he was
adjudicated delinquent. The juvenile's sole argument on appeal
is that the trial court's written finding that the juvenile has
a history of "AWOL behavior" does not constitute a "compelling
reason" within the meaning of N.C. Gen. Stat. § 7B-2605 (2013) -2- sufficient to justify the denial of his release pending his
appeal of his disposition order.
Because the juvenile has failed to make any argument
regarding the underlying disposition order, he cannot show that
he was prejudiced in any way by the denial of his release
pending an appeal that he has effectively abandoned. In any
event, we hold that under the facts of this case, the trial
court's written finding complied with N.C. Gen. Stat. § 7B-2605.
Accordingly, we affirm.
Facts
On 19 September 2011, the juvenile entered an admission to
three class H felonies and a misdemeanor and was adjudicated
delinquent. He was sentenced as a level two offender and placed
on probation for 12 months. On 6 December 2011, the juvenile
admitted to committing financial card transaction theft and was
again adjudicated delinquent. By request of the court
counselor, no disposition was entered. Instead, the juvenile
continued on probation according to the terms of the 19
September 2011 disposition order.
On 31 May 2012, the juvenile's court counselor filed a
motion for review alleging that the juvenile had violated the
terms and conditions of his probation by leaving his foster home
without cause or permission on 27, 28, and 30 May 2012 and by -3- being suspended from school. At the hearing on 3 July 2012, the
juvenile admitted to the violations. The trial court entered an
adjudication order finding that the juvenile had violated the
terms of his probation, but the court continued the disposition
on the motion for review in order to monitor the juvenile's
behavior and determine if remaining in the community was in his
best interest.
Pending the next hearing and entry of a disposition on the
motion for review, the court ordered the juvenile to continue to
abide by the terms of his probation. In addition to the written
order, the judge specifically warned the juvenile during the
hearing that if he violated the terms and conditions of his
probation, including leaving his foster home without permission,
he would be detained and sent to training school.
Two months later, on 7 September 2012, the juvenile's
foster mother requested to have the juvenile removed from her
home due to his disrespectful behavior, constant AWOL, threats,
and accusations that her husband, the foster father, had pushed
the juvenile. The juvenile was placed in a different foster
home on 28 September 2012.
At the disposition hearing on the motion for review
conducted on 8 October 2012, the trial court considered the
juvenile's predisposition report, risk assessment, and needs -4- assessment and heard the testimony of the juvenile, the
juvenile's biological mother and father, and the court
counselor. The court counselor recommended that the juvenile's
"probation be terminated unsuccessful or [he] be sent to the
Youth Development Center." The court counselor's report noted
that although the juvenile had been doing well in his
therapeutic foster care placement, the juvenile, following the 3
July 2012 hearing, began engaging in negative behaviors and on
two occasions "went AWOL," leaving the home without permission
and going to the Relatives, an emergency shelter for teens.
At the close of the hearing, the trial court indicated it
would impose a level three disposition and "go ahead and commit
him into the custody of the Department of Juvenile Justice."
The juvenile gave oral notice of appeal, but did not request
release pending appeal. The same day, 8 October 2012, the court
filed a written disposition and commitment order.
The court filed an amended disposition order on 16 October
2012. The amended order stated the juvenile had been
adjudicated delinquent on 19 September 2011 for felony breaking
and entering and indicated that this constituted a violent or
serious offense for which a level three disposition was
authorized under N.C. Gen. Stat. § 7B-2508 (2013). The court
ordered that the juvenile be committed to the Department of -5- Juvenile Justice and Delinquency Prevention for a minimum period
of six months and an indefinite commitment thereafter not to
extend past the juvenile's 18th birthday.
Discussion
The juvenile's sole argument on appeal is that the trial
court did not make sufficient findings regarding why the
juvenile's release was denied pending appeal. N.C. Gen. Stat. §
7B-2605 provides:
Pending disposition of an appeal, the release of the juvenile, with or without conditions, should issue in every case unless the court orders otherwise. For compelling reasons which must be stated in writing, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile or the State.
(Emphasis added.)
"In other words, pending his appeal the juvenile must be
released unless the judge enters a written order to the
contrary, stating the reasons for commitment pending appeal."
In re Bass, 77 N.C. App. 110, 117, 334 S.E.2d 779, 783 (1985).
In this case, the judge marked box number three on the Appellate
Entries form indicating that "[r]elease of the juvenile pursuant
to G.S. 7B-2605 is denied." In the space provided to note
"[c]ompelling reasons," the judge wrote "juvenile has a history
of AWOL behavior." The juvenile contends that his "AWOL -6- behavior" does not constitute a "compelling reason" sufficient
to justify his commitment pending his appeal.
The juvenile cannot, however, show that he has been
prejudiced by this alleged error. This Court has recognized
that although "juveniles should be afforded the protection of
each of the procedural safeguards provided by the North Carolina
Juvenile Code[,]" the burden is on the juvenile to show "a
reasonable possibility that a different result would have been
reached" but for the error. In re Bass, 77 N.C. App. at 115,
334 S.E.2d at 782.
In Bass, the juvenile argued, as in this case, that he
should have been released pending appeal because the trial court
failed to enter a proper order setting out compelling reasons
for not releasing the juvenile during his appeal. Id. at 117,
334 S.E.2d at 783. Although this Court acknowledged that the
trial court failed to enter the required order, the Court
concluded that the juvenile had failed to show any prejudice.
Id. The Court pointed out that the trial court's disposition
ordered the juvenile's commitment based on two independent,
alternative grounds. Id. Since the juvenile had challenged on
appeal only one of those grounds, the unchallenged ground --
violation of probation -- required that he remain committed even -7- though he had appealed the other ground, an adjudication of
delinquency based on larceny. Id.
Similarly, here, the juvenile has not made any arguments in
his brief regarding the underlying adjudication and disposition
orders. He has, effectively, abandoned his appeal of the
underlying disposition order, N.C.R. App. P. 28(b)(6), and,
therefore, his commitment is valid pursuant to that unchallenged
order. The juvenile's argument is circular: he contends that
the trial court erred in failing to release him pending his
appeal of the trial court's failure to release him pending his
appeal. Not surprisingly, the juvenile has failed to cite any
authority or make any other showing that he was prejudiced by
the alleged error given his abandonment of any challenge to the
underlying disposition order.
In any event, we hold that the trial court's written
finding that the "juvenile has a history of AWOL behavior" is
sufficiently compelling given the record in this case. The
juvenile cites no case suggesting otherwise.
The juvenile, citing only In re J.J., 216 N.C. App. 366,
717 S.E.2d 59 (2011), argues that "AWOL behavior" amounts to
nothing more than a finding of direct contempt, which is not a
"compelling reason" under N.C. Gen. Stat. § 7B-2605. The
juvenile, however, misconstrues the holding of In re J.J. In In -8- re J.J., the trial court, at the close of the disposition
hearing, orally denied release of the juvenile pending his
appeal. 216 N.C. App. at 375, 717 S.E.2d at 66. The trial
court then entered a secure custody order and as the basis for
that secure custody order, checked the box finding direct
contempt by the juvenile. Id. at 376, 717 S.E.2d at 66.
Neither the order nor the Appellate Entries form contained any
other written findings of compelling reasons for denying
release. Id.
On appeal, this Court noted that there was no evidence in
the record to support a finding of direct contempt and,
therefore, concluded that the trial court had failed to meet the
requirements of N.C. Gen. Stat. § 7B-2605. Id. Thus, the order
was vacated because the sole written finding -- direct contempt
-- was not supported by the record. The Court did not address
whether direct contempt would suffice as a compelling reason had
the finding been supported by the record. Id.
Here, in contrast, the record supports, and the juvenile
does not challenge, the finding that the juvenile has a history
of AWOL behavior. The juvenile's AWOL behavior was the basis of
his probation violation in May 2012 which caused his court
counselor to file a motion for review. At the 3 July 2012
hearing, the court continued the case to give the juvenile a -9- chance to demonstrate why remaining in the community would be in
the juvenile's best interest. The court specifically warned the
juvenile that a condition of his release was that he stay in his
placement and that if he left without permission, he would be
detained. Nevertheless, after the 3 July 2012 hearing, the
juvenile left his placement without cause or permission,
repeating his AWOL behavior. Under these circumstances, we
cannot say that the juvenile's history of AWOL behavior was not
a compelling reason to deny the juvenile's release pending his
appeal within the meaning of N.C. Gen. Stat. § 7B-2605.
Affirmed.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).