In re: A.G.J.

• Court: Court of Appeals of North Carolina
• Decided: November 21, 2023
• Docket: 23-323
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-323

Filed 21 November 2023

Rockingham County, No. 19JB109

IN RE: A.G.J.

Appeal by juvenile-defendant from order entered 19 September 2022 by Judge

Christopher Freeman in Rockingham County District Court. Heard in the Court of

Appeals 19 September 2023.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy Dickinson-Schultz, for juvenile-appellant.

Attorney General Joshua H. Stein, by Assistant Attorney General Bettina J. Roberts, for the State.

FLOOD, Judge.

Juvenile-Defendant, A.G.J. (“Annie”),1 appeals from the trial court’s 19

September 2022 disposition order, arguing the trial court erred by failing to include

written findings demonstrating it considered the factors listed in N.C. Gen. Stat. §

7B-2501(c) (2021). For the reasons that follow, we agree.

I. Factual and Procedural Background

On 6 June 2020, juvenile petitions against Annie were approved for filing by

regarding the minor’s mother’s conviction for second-degree murder because, the

1 Pseudonym used to protect the identity of the juvenile and for ease of reading. IN RE: A.G.J.

Opinion of the Court

Chief Court Counselor for Rockingham County District Court for simple affray and

unauthorized use of a motor vehicle. The petition alleging simple affray was based

on an incident that occurred on 10 November 2021, where Annie and another

schoolmate were in a physical altercation in the school cafeteria. During the

altercation, Annie and her schoolmate both punched each other with closed fists. The

petition alleging unauthorized use of a motor vehicle stemmed from an incident on

15 May 2022 where Annie took her adoptive mother’s car without permission.

An adjudication hearing was held on 8 August 2022. At the adjudication

hearing, Annie admitted fault to both charges and was adjudicated as a delinquent

juvenile.

On 19 September 2022, a disposition hearing was held. Following the

disposition hearing, Annie was sentenced to twelve months’ probation and placed in

the custody of Rockingham Department of Social Services. On 28 September 2022,

Annie filed timely notice of appeal.

II. Jurisdiction

While Annie filed timely notice of appeal, her attorney failed to indicate the

court to which she was appealing. Under the North Carolina Rules of Appellate

Procedure, a notice of appeal is required to specify “the court to which appeal is

taken[.]” N.C.R. App. P. 3(d). Rule 3(d) is a jurisdictional rule, and failure to comply

is a jurisdictional default mandating dismissal. See Dogwood Dev. and Mgmt. Co.,

LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) (“A

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jurisdictional default, therefore, precludes the appellate court from acting in any

manner other than to dismiss the appeal.”).

To cure this procedural defect, Annie has filed a Petition for Writ of Certiorari

(“PWC”) pursuant to North Carolina Rule of Appellate Procedure 21(a)(1). This Court

“maintains broad jurisdiction to issue writs of certiorari[.]” In re R.A.F., 384 N.C.

505, 507, 886 S.E.2d 159, 161 (2023). The issuance of a writ is generally supported

where “the right of appeal has been lost through no fault of the petitioner[.]” In re

Z.T.W., 238 N.C. App. 365, 368, 767 S.E.2d 660, 663 (2014); see also State v.

Hammonds, 218 N.C. App. 158, 163, 720 S.E.2d 820, 823 (2012) (issuing a writ where

it was “readily apparent that [the] defendant has lost his appeal through no fault of

his own, but rather as a result of sloppy drafting of counsel”).

Here, Annie’s counsel’s failure to include a designation as to which court the

appeal was being made was not Annie’s fault. As such, this Court elects to allow

Annie’s PWC and review her claim on the merits. See Hammonds, 218 N.C. App. at

163, 720 S.E.2d at 823.

III. Analysis

This Court reviews a trial court’s “alleged statutory errors de novo.” In re K.C.,

226 N.C. App. 452, 462, 742 S.E.2d 239, 246 (2013). “Under a de novo review, [this]

[C]ourt considers the matter anew and freely substitutes its own judgment for that

of the lower tribunal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)

(citation and internal quotation marks omitted).

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“The dispositional order shall be in writing and shall contain appropriate

findings of fact and conclusions of law.” N.C. Gen. Stat. § 7B-2512(a) (2021).

“Appropriate findings of fact” are those that consider the following:

In choosing among statutorily permissible dispositions, the court shall select the most appropriate disposition in both terms of kind and duration for the delinquent juvenile. Within the guidelines set forth in [N.C. Gen. Stat. §] 7B- 2508, the court shall select a disposition that is designed to protect the public and to meet the needs and best interests of the juvenile based upon:

(1) The seriousness of the offense; (2) The need to hold the juvenile accountable; (3) The importance of protecting the public safety; (4) The degree of culpability indicated by the circumstances of the particular case; and (5) The rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.

N.C. Gen. Stat. § 7B-2501(c) (2021).

At the outset, we note that “[w]here a panel of the Court of Appeals has decided

the same issue, albeit in a different case, a subsequent panel of the same [C]ourt is

bound by that precedent, unless it has been overturned by a higher court.” State v.

Davis, 198 N.C. App. 443, 447, 680 S.E.2d 239, 243 (2009). This Court’s precedents

have made it clear that the trial court is required to make written findings in a

disposition order entered in a juvenile delinquency matter, demonstrating it

considered all the factors in Section 7B-2501(c). See In re J.J., 216 N.C. App. 366,

375, 717 S.E.2d 59, 65 (2011) (finding error when the trial court did not make any

written findings of fact); see also In re V.M., 211 N.C. App. 389, 391–92, 712 S.E.2d

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213, 215 (2011) (reversing the trial court’s disposition order for failure to properly

consider all of the factors required); In re I.W.P., 259 N.C. App. 254, 261, 815 S.E.2d

696, 702 (2018) (“The plain language of Section 7B-2501(c) compels us to find that a

trial court must consider each of the five factors in crafting an appropriate

disposition.”). “The purpose of the requirement that the [trial] court make findings

of those specific facts which support its ultimate disposition . . . [is] to allow a

reviewing court to determine . . . whether the judgment and the legal conclusions

which underlie it represent a correct application of the law.” In re W.M.C.M., 277

N.C. App. 66, 77, 857 S.E.2d 875, 881 (2021) (first and third alteration added)

(citation omitted).

We recently reaffirmed this proposition in In re N.M., COA23-100, 2023 WL

6066497 (N.C. Ct. App. Sept. 19, 2023). In In re N.M., the trial court used a pre-

printed disposition order and checked the box noting it considered the predisposition

report, risk assessment, and needs assessment. Id. at *2. The trial court did not

make any other written findings of fact. Id. at *2. This Court concluded that, while

the factors may be included in the reports, the trial court has the responsibility to

make written findings of fact showing it considered the factors in Section 7B-2501(c).

Id. at *3 (holding the “[other findings] section must be filled with findings made by

the trial court regarding the five factors required by the statute, otherwise it is

reversible error”).

In this case, Annie argues the trial court failed to consider all of the factors and

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make relevant findings of fact when entering the disposition order. We agree.

In the pre-printed disposition order filed by the trial court, it found Annie had

been given a Class I disposition on 19 September 2022; checked the box noting Annie’s

juvenile delinquency history level was low; and checked the boxes noting it had

received, considered, and incorporated the contents of the predisposition report, risk

assessment, and needs assessment. Then, in the section of the pre-printed

dispositional order labeled “other findings,” the trial court added the following:

Based on the evidence, the [trial court] make [sic] the following findings of fact: [Annie] appeared in court late. Her counsel and adoptive mother were present. The [trial court] had to withdraw a secure custody order after [Annie] appeared in court late. The adoptive mother stated that she had no contact with [Annie] for an extended period of time and there were allegations of [Annie] being involved in drug activity. The adoptive mother has other juveniles in her home and refuses for [Annie] to return to her home until she is enrolled in some type of drug counseling. It is impossible to do this instantaneously, therefore, [Annie] is left without a place to go. Additionally, counsel for [Annie] indicated that [Annie] is unwilling to return to the adoptive mother’s home. Pursuant to statute, the [trial c]ourt changes custody of [Annie[ from [her] adoptive mother to Rockingham County Department of Social Services.

As in In re N.M., incorporating the reports by reference is insufficient to meet

the statutory requirements set forth in Section 7B-2501(c). See In re N.M. at *2.

Further, we fail to see how the “other findings” detailed above show the trial court

considered the five factors in Section 7B-2501(c). The written findings the trial court

made do not relate to the offenses detailed in the petitions, but seem to solely relate

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to Annie’s difficulties with her living situation. We also fail to see, as the dissent

posits, how the “other findings” detailed above show Annie’s culpability. The Record

shows Annie and another female schoolmate were in a physical altercation in the

school cafeteria where they both punched each other with closed fists. Even though

Annie admitted fault at the adjudication hearing, the trial court did not indicate that

it took into account the other girl’s role in the altercation, to demonstrate to this Court

that it considered Annie’s culpability when sentencing her to twelve months’

probation. See N.C. Gen. Stat. § 7B-2501(c)(4).

We note this Court has given a more deferential reading of disposition orders

in the past. See In re I.W.P., 259 N.C. App. at 264, 815 S.E.2d at 704 (concluding the

trial court addressed in the disposition order (1) the need to hold the juvenile

accountable by imposing a twelve-month probationary sentence; and (2) the

importance of protecting public safety and the rehabilitative needs of the juvenile by

imposing probationary conditions). Given our more recent decision in In re N.M.,

however, we decline to give the disposition order in the instant case such a deferential

interpretation, as doing so would render the requirement that a trial court make

written findings meaningless. See In re N.M. at *3.

For this same reason, we also decline to conclude, as the State argues we

should, that the designation of the offense as a “Class 1 misdemeanor” shows the trial

court considered “the seriousness of the offense.” This alone does not show this Court

that the trial court considered the seriousness of the offense; it merely shows the trial

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court knew the classification of the offense.

Without written findings addressing the factors in Section 7B-2501(c), the

disposition order is deficient and constitutes “reversible error.” See In re N.M. at *3.

IV. Conclusion

We conclude the trial court failed to make written findings of fact showing it

considered the factors set forth in N.C. Gen. Stat. § 7B-2501(c). Accordingly, we

vacate the disposition order and remand for a new disposition hearing and entry of

an order that includes findings of fact addressing all of the required factors.

VACATED AND REMANDED.

Judge MURPHY concurs.

Chief Judge STROUD dissents in separate writing.

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STROUD, C.J., dissenting

No. COA23-323 – In re: A.G.J.

STROUD, Chief Judge, dissenting.

Because the trial court’s disposition order demonstrates the trial court

considered and made findings addressing each of the factors as required by North

Carolina General Statute Section 7B-2501(c), and the order is fully sufficient to allow

for proper appellate review, I dissent. We review orders based upon their substance,

not technical form. See In re A.U.D., 373 N.C. 3, 11, 832 S.E.2d 698, 703 (2019)

(noting a remand for findings on uncontested issues would elevate “form over

substance and would serve only to delay the final resolution of this matter for the

children”). Trial courts are not required by North Carolina General Statute Section

7B-2501(c) to follow a specific format or wording for their findings of fact. See

generally N.C. Gen. Stat. § 7B-2501(c); see generally also In re D.E.P., 251 N.C. App.

752, 758, 796 S.E.2d 509, 513 (2017) (“Ferrell did not address the degree to which a

court’s findings must specifically reflect consideration of the factors listed in N.C.

Gen. Stat. § 7B-2501(c), and did not set out any rule regarding this issue.” (emphasis

in original)).

Here, the trial court’s disposition order demonstrates full consideration of each

factor in North Carolina General Statute section 7B-2501(c). Therefore, while I agree

with the facts as laid out by the majority, I write separately to address the majority’s

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misplaced reliance on In re: N.M., ___ N.C. App. ___, 892 S.E.2d 643 (2023). Because

I conclude the trial court made sufficient findings of fact to satisfy North Carolina

General Statute Section 7B-2501(c), I would affirm.

I. North Carolina General Statute Section 7B-2501(c)

The issue of what is required to satisfy North Carolina General Statute Section

7B-2501(c) has been addressed in many prior published cases, including In re I.W.P.,

which noted:

In fact, this Court has previously held the trial court must consider each of the factors in Section 7B-2501(c). See In re Ferrell, 162 N.C. App. 175, 177, 589 S.E.2d 894, 895 (2004); In re V.M., 211 N.C. App. 389, 391-92, 712 S.E.2d 213, 215 (2011); K.C., 226 N.C. App. 452, 462, 742 S.E.2d 239, 246; and In re G.C., 230 N.C. App. 511, 519, 750 S.E.2d 548, 553 (2013). However, this Court recently held, contrary to precedent, that the trial court does not need to consider all of the Section 7B-2501(c) factors when entering a dispositional order. In re D.E.P., ___ N.C. App. ___, ___, 796 S.E.2d 509, 514 (2017). This inconsistency has created a direct conflict in this Court’s prior jurisprudence and must be reconciled.

In re I.W.P., 259 N.C. App. 254, 261–62, 815 S.E.2d 696, 703 (2018). The main

question in the cases cited in I.W.P. is generally how much detail the trial court must

include in the findings of fact and the extent of the trial court’s reliance on

incorporation by reference of reports and other documents into the order. See id.

Prior cases addressing Section 7B-2501(c) tend to fall into three groups, based upon

the characteristics of the order on appeal.

A. Orders with No Additional Findings

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In the first category of cases, this Court has generally remanded for further

findings of fact because the trial court made no additional findings of fact, whether

by incorporation of documents or not. See, e.g., In re J.J., Jr., 216 N.C. App. 366, 376,

717 S.E.2d 59, 66 (2011) (vacating and remanding in part, without mention of

incorporation, due to the trial court’s failure “to state any written findings of fact”);

In re V.M., 211 N.C. App. 389, 392, 712 S.E.2d 213, 215-16 (2011) (reversing and

remanding because documents were incorporated by reference but “no additional

findings of fact” were made). J.J., Jr. and V.M. indicate that while incorporation by

reference of additional documents is allowed, the trial court must make some

additional findings of fact which indicate the trial court exercised its own discretion

and reasoning upon the case. See J.J., Jr., 216 N.C. App. at 376, 717 S.E.2d at 66;

V.M., 211 N.C. App. at 392, 712 S.E.2d at 215-16.

B. Orders with Some Findings of Fact

In the second category of cases, this Court has again generally remanded the

case when the trial court made some additional findings, but those findings were

either (1) not sufficient to address all of the factors or (2) not supported by the

evidence. See, e.g., In re K.C., 226 N.C. App. 452, 461, 742 S.E.2d 239, 245 (2013)

(remanding a disposition order, without mention of incorporation, because though

additional findings were made, they were not sufficient); In re Ferrell, 162 N.C. App.

175, 177, 589 S.E.2d 894, 895-96 (2004) (remanding, without mention of

incorporation, because the evidence did not support a finding of fact). K.C. and Ferrell

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indicate that while incorporation by reference of additional documents into the order

is appropriate, the trial court must still make sufficient additional findings of fact to

satisfy the requirements of North Carolina General Statute Section 7B-2501(c). See

K.C., 226 N.C. App. at 461, 742 S.E.2d at 245; Ferrell, 162 N.C. App. at 177, 589

S.E.2d at 895-96.

C. Orders with Sufficient Findings of Fact

In the third category of cases, where the orders are often affirmed, the trial

court made additional findings of fact with or without incorporation by reference of

other documents. See, e.g., D.E.P., 251 N.C. App. at 759, 796 S.E.2d at 514 (affirming,

without mention of incorporation, because there were sufficient findings of fact); In

re G.C., 230 N.C. App. 511, 521, 750 S.E.2d 548, 555 (2013) (affirming, without

mention of incorporation, in part because there were sufficient written findings of

fact). D.E.P. and G.C. indicate that incorporation by reference along with additional

findings of fact, may be sufficient to satisfy the requirements of North Carolina

General Statute Section 7B-2501(c). See D.E.P., 251 N.C. App. at 759, 796 S.E.2d at

514; G.C., 230 N.C. App. at 521, 750 S.E.2d at 555.

D. In re N.M.

Turning to the majority’s primary analysis, in N.M., the trial court

incorporated documents by reference but failed to make any additional findings of

fact. See N.M. ___ N.C. App. ___, 892 S.E.2d. 643. Thus, N.M., would properly fall

within the first category of cases. Since the trial court made no additional findings

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to address the factors, but only incorporated additional documents, the trial court did

not demonstrate it had exercised independent reasoning upon the case. See, e.g., J.J.,

Jr., 216 N.C. App. at 376, 717 S.E.2d at 66; V.M., 211 N.C. App. at 392, 712 S.E.2d at

215.

But this case falls into the third category of cases. See D.E.P., 251 N.C. App.

at 759, 796 S.E.2d at 514; G.C., 230 N.C. App. at 521, 750 S.E.2d at 555. Here, the

trial court not only incorporated other documents by reference but also made at least

seven additional findings of fact, as quoted in the majority opinion. While the

findings of fact could be worded more artfully, and they are in paragraph form rather

than a neatly delineated list tracking the subsections of Section 7B-2501(c), the trial

court did make additional findings addressing the factors.

In my references to past cases I have noted the trial court’s use of

“incorporation by reference” of other documents into the order because I am concerned

that the majority’s interpretation of the trial court’s order elevates form over

substance. The majority states, “As in In re N.M., incorporating the reports by

reference is insufficient to meet the statutory requirements set forth in Section 7B-

2501(c).” N.M. stands for the proposition that incorporation of additional documents

by reference, alone, is insufficient, but in this case, the trial court made additional

findings. See generally N.M., ___ N.C. App. ___, 892 S.E.2d. 643. In addition,

although the majority noted the trial court’s additional findings of fact, the majority

failed to address the incorporated documents at all; the opinion reads as if only the

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additional findings may be considered.

According to Black’s Law Dictionary, “incorporation by reference” is “[a]

method of making a secondary document part of a primary document by including in

the primary document a statement that the secondary document should be treated as

if it were contained within the primary one.” Black’s Law Dictionary 916 (11th ed.

2019). In other words, because the trial court did not merely refer to “the

predisposition report, risk assessment, and needs assessment” but explicitly

“incorporat[ed them] by reference” those documents “should be treated as if [they]

were contained with the primary one” along with the seven additional findings of fact.

N.M., ___ N.C. App. ___, ___, 892 S.E.2d. 643, ___.

A clear example of review of an order with documents incorporated by

reference is In re J.A.D., wherein this Court stated, “The record on appeal includes

[the juvenile’s] predisposition report, risks assessment, and needs assessment that

were incorporated by reference into the trial court’s written disposition order, but

these documents also do not sufficiently address each of the N.C. Gen. Stat. § 7B-

2501(c) factors.” In re J.A.D., 283 N.C. App. 8, 24, 872 S.E.2d 374, 387 (2022) (citation

omitted). In other words, the incorporated documents in J.A.D. case did not satisfy

the factors in North Carolina General Statute Section 7B-2501(c), but the

incorporated documents were considered as part of the primary document in

determining whether the factors were addressed. See id.

Last, while again I conclude N.M. does not control this case because here the

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trial court made additional findings of fact, while the order in N.M. had no additional

findings, see generally N.M., ___ N.C. App. ___, ___ S.E.2d. ___., I also disagree with

the majority’s analysis regarding application of precedent. Even if we assume there

have been inconsistencies in this Court’s interpretations of North Carolina General

Statute Section 7B-2501(c), see I.W.P., 259 N.C. App. at 261-62, 815 S.E.2d at 703,

“we are bound to follow the ‘earliest relevant opinion’ to resolve the conflict[:]”

Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court. In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37. The dilemma of In Re Civil Penalty arises when panels of this Court have decided the same issue two different ways, since we are theoretically bound by two opposing precedents or lines of precedent. And the Court may have a double dilemma where a prior panel of this Court has addressed not only the underlying issue but also the effect of In Re Civil Penalty on the same issue in different ways. See Routten, ___N.C. App. at ___, 822 S.E.2d at 449 (Berger, J., concurring) (“As the case before us here demonstrates, this Court can be trapped in a chaotic loop as different panels disagree, not only on the interpretation of the law, but also on what law appropriately controls the issue.”). We have that double dilemma here, since this Court addressed the same issue and application of In re Civil Penalty in Respess, see Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014), coming to one conclusion in 2014, and in Routten, coming to the opposite conclusion, in 2018. See Routten, ___, ___ N.C. App. ___, 822 S.E.2d 436. Yet we must resolve this double dilemma, and we conclude Respess is the precedent which must be followed. Where there is a conflict in cases issued by this Court addressing an issue, we are bound to follow the ‘earliest relevant opinion’ to resolve the conflict: Where a panel of the Court of Appeals

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has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court. Further, our Supreme Court has clarified that, where there is a conflicting line of cases, a panel of this Court should follow the older of those two lines. With that in mind, we find Skipper and Vaughn are irreconcilable on this point of law and, as such, constitute a conflicting line of cases. Because Vaughn is the older of those two cases, we employ its reasoning here. State v. Gardner, 225 N.C. App. 161, 169, 736 S.E.2d 826, 832 (2013) (citations and quotation marks omitted). Thus, we turn to Respess. See Respess, 232 N.C. App. 611, 754 S.E.2d 691.

Huml v. Huml, 264 N.C. App. 376, 394–95, 826 S.E.2d 532, 545 (2019) (formatting

altered). I rely on “the older” case of J.A.D. instead of the more recent case of In re

N.M. Huml, 264 N.C. App. at 394-95, 826 S.E2d at 545; see also N.M. ___ N.C. App.

___, 892 S.E.2d 643 (noting filing in 2023); 283 N.C. App. 8, 24, 872 S.E.2d 374 (noting

filing in 2022).

As the dissenting judge, I will not attempt to reconcile years of arguably

inconsistent case law and remain “trapped in a chaotic loop as different panels

disagree[.]” Huml, 264 N.C. App. at. 395, 826 S.E.2d at 545 (citation omitted). I

simply note that here, by incorporating the pertinent documents into its order along

with its additional findings of fact, the trial court satisfied North Carolina General

Statute Section 7B-2501(c) as these documents and the trial court’s findings address:

(1) The seriousness of the offense;

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(2) The need to hold the juvenile accountable; (3) The importance of protecting the public safety; (4) The degree of culpability indicated by the circumstances of the particular case; and (5) The rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.

N.C. Gen. Stat. § 7B-2501(c) (2021). I would affirm the trial court’s order.

Accordingly, I dissent.

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