An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1438 NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF: Wake County No. 09 JB 532 C.D.P.
Appeal by juvenile C.D.P. from a disposition and commitment
order entered 27 June 2013 by Judge Jennifer Knox in Wake County
District Court. Heard in the Court of Appeals 5 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General Lareena J. Phillips, for the State.
Gerding Blass, PLLC, by Danielle Blass, for Defendant- Appellant.
HUNTER, JR., ROBERT N., Judge.
Appellant C.D.P. (“Charlie”)1 appeals from a Wake County
District Court disposition and commitment order entered 27 June
2013. Charlie argues (1) that the district court violated N.C.
Gen. Stat. § 7B-2512 (2013) by failing to make sufficient
written findings of fact in its disposition order to support its
1 “Charlie” is a pseudonym used to protect the identity of the juvenile pursuant to N.C. R. App. P. 3.1(b). -2- conclusion that Charlie violated his probation; (2) that the
district court failed to consider the proper statutory factors
when deciding to commit Charlie to a youth development center;
and (3) that the district court abused its discretion when it
ordered Charlie be committed based on the fact that his guardian
and parents were unable to provide him with a stable living
environment. After review, we reverse the district court’s
decision and remand for the district court to make additional
findings of fact.
I. Facts and Procedural History
On 20 August 2009, Detective S.B. Snowden filed two
juvenile petitions alleging that Charlie had committed felony
larceny and felony breaking and entering a motor vehicle. The
court dismissed the breaking and entering petition and reduced
the larceny charge to a misdemeanor. Charlie admitted to
misdemeanor larceny and on 19 November 2009 the court
adjudicated him delinquent with a level 1 disposition. After
Charlie had complied with the community service order by
completing sixty hours of community service, the district court
dismissed the larceny disposition.
On 2 June 2010, Detective R.K. Johnson filed a petition
alleging that Charlie had committed injury to real property. -3- The State later amended the petition to allege the commission of
misdemeanor second-degree trespass. On 29 July 2010, Charlie
admitted to having committed misdemeanor second-degree trespass
and the court ordered a level 1 disposition, placing Charlie on
probation for up to six months.
On 24 May 2012, Charlie’s biological mother filed a
petition alleging that Charlie was undisciplined. Between 13
June 2012 and 21 June 2012, six petitions were filed alleging
that Charlie had committed common law robbery, injury to
personal property, possession of stolen property, and three
counts of felony breaking and entering a motor vehicle. The
court dismissed the delinquency petition, the misdemeanor
possession of stolen property petition and two counts of felony
breaking and entering a motor vehicle. The court also reduced
the common law robbery charge to misdemeanor larceny. On 1
August 2012, Charlie admitted to felony breaking and entering a
motor vehicle, misdemeanor larceny, and injury to personal
property. The court adjudicated him delinquent and sentenced
Charlie to a level 2 disposition, placing him on 12 months of
probation.
Between 6 September 2012 and 18 October 2012, three
separate petitions were filed against Charlie alleging -4- misdemeanor larceny and possession of stolen goods. On 24
October 2012, after the court dismissed two of the petitions,
Charlie admitted to having committed one count of misdemeanor
larceny and misdemeanor possession of stolen goods. The court
ordered Charlie to continue to abide by the terms of his
probation in accordance with his level 2 disposition and to
cooperate with electronic monitoring.
On 30 October 2012 a petition was filed alleging
misdemeanor larceny. On 5 December 2012, Charlie admitted to
the offense, the court adjudicated him delinquent, and ordered a
level 2 disposition ordering him to comply with the previously
imposed terms of probation and with the Eckerd Residential
Treatment Program. Charlie started the Eckerd Short Term
Residential Program on 10 December 2012 and completed the
program 29 March 2013.
On 22 April 2013, a few weeks after Charlie’s release from
the Eckerd Program, a petition was filed alleging felony
breaking and entering and felony larceny. On 20 May 2013,
Juvenile Court Counselor Randall Siedliski (“Counselor
Siedliski”) filed a Motion for Review of Charlie’s probation
alleging that Charlie had violated his probation by failing to -5- attend the SCORE program and by failing to comply with his
electronic monitoring leave time requirements.
On 13 June 2013, Charlie’s probation review motion came
before the Wake County District Court, with Judge Jennifer Knox
presiding. Pursuant to a plea agreement, Charlie admitted to
the alleged probation violations and the State dismissed the
pending 22 April 2013 petition alleging felony breaking and
entering and felony larceny. Counselor Siedliski submitted a
predisposition report, a risk assessment, and a needs assessment
to the court. The court considered Counselor Siedliski’s
report, incorporating the report and assessments by reference in
the disposition order.
In the section of the court’s disposition order labeled
“Other,” the court made the following findings:
[Charlie] has 8 points. His mother is a substance abuser who drifts in and out of his life, giving him no stability. His grandmother, with whom he currently lives, cannot provide the stability and supervision that he needs to thrive and succeed. [Charlie] needs a long-term out-of-home placement that can provide him with structure and stability that he has never had. It is better for [Charlie] to be committed to a Youth Development Center, with a strong recommendation for a community commitment, like a foster home or other group home, so that he can receive immediate services in a stable environment. He recently returned from Eckerd Camp, and -6- immediately had probation violations, even while on Electronic Monitoring. He will not succeed if he stays in the community.
In Counselor Siedliski’s predisposition report, referenced
in the court’s order, Counselor Siedliski recommended that
Charlie receive a level 3 disposition and
that [Charlie] be Committed to a Youth Development Center with consideration for Community Commitment. [Charlie] has an extensive delinquent history including felony adjudications. The alleged pending felonies would have been committed less than two weeks after being discharged from Eckerd Candor. In the interest of public safety, a Commitment is warranted to best address the needs of [Charlie] while safeguarding society.
After the hearing, the district court authorized a level 3
disposition for Charlie in accordance with N.C. Gen. Stat. § 7B-
2508 (2013). The court committed Charlie to a youth development
center indefinitely. Charlie appeals.
II. Jurisdiction and Standard of Review
The district court’s disposition order was signed on 13
June 2013. The file stamp on the disposition order shows that
it was entered on 27 June 2013. Charlie gave written notice of
appeal on 25 June 2013, two days before the disposition order
was filed. Pursuant to Rule 4 of the North Carolina Rules of
Appellate Procedure, -7- [a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by (1) giving oral notice of appeal at trial, or (2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment or order.
N.C. R. App. P. 4(a)(2) (emphasis added). Here, because
Defendant filed written notice of appeal two days before the
entry of the disposition order, Defendant filed a petition for
writ of certiorari to this Court on 29 January 2014 seeking our
review notwithstanding his failure to comply with N.C. R. App.
P. 4. Generally, a timely appeal to this Court from a final
order in a juvenile manner is as of right pursuant to N.C. Gen.
Stat. § 7B-2602 (2013). In light of the foregoing and the
circumstances presented in this case, we, in our discretion,
grant the petition.
Charlie contends the district court failed to make
sufficient written findings of fact in accordance with N.C. Gen.
Stat. § 7B-2512 to support its conclusion that Charlie had
violated the conditions of his probation. He also argues the
district court erred by committing Charlie to a youth
development center because the court failed to make sufficient -8- findings of fact to establish that a level 3 disposition was
warranted.
“Conclusions of law drawn by the trial court from its
findings of fact are reviewable de novo on appeal.” Carolina
Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597
S.E.2d 717, 721 (2004). “Under a de novo review, the court
considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” State v. Williams,
362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quotation
marks and citation omitted).
Charlie also argues the district court abused its
discretion by ordering Charlie be committed to a youth
development center on the grounds that Charlie’s parents and
grandmother were not able to provide him with a stable living
environment. “Abuse of discretion results where the court’s
ruling is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision.”
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
III. Analysis
A. Findings of Fact Regarding Probation Violation
sufficient written findings of fact in accordance with N.C. Gen. -9- Stat. § 7B-2512 to support its conclusion that Charlie had
violated the conditions of his probation. We agree.
This Court has “previously held that juvenile probation
revocation proceedings are dispositional, and subject to the
statutory provisions governing juvenile delinquency
dispositions.” In re V.M., 211 N.C. App. 389, 391, 712 S.E.2d
213, 215 (2011). In addition, the State has an increased burden
in juvenile proceedings to ensure that a juvenile’s rights are
protected. See In re Meyers, 25 N.C. App. 555, 558, 214 S.E.2d
268, 270 (1975). Thus, a court’s adherence to the statutory
requirements remains paramount in juvenile dispositions and
probation revocation hearings.
“If the trial court finds by the greater weight of the
evidence that the juvenile has violated the conditions of
probation then the trial court ‘may continue the original
conditions of probation, modify the conditions of probation, or,
. . . order a new disposition at the next higher level on the
disposition chart . . . .’” In re V.A.L., 187 N.C. App. 302,
303, 652 S.E.2d 726, 727 (2007) (quoting N.C. Gen. Stat. § 7B-
2510(e) (2005)). “[T]he trial court must only find by a
preponderance of the evidence that a juvenile has violated the
conditions of his probation under N.C. Gen. Stat. § 7B-2510(e) -10- (2001).” In re O’Neal, 160 N.C. App. 409, 412–13, 585 S.E.2d
478, 481 (2003). Once the dispositional hearing concludes and
the juvenile has been adjudicated, “[t]he dispositional order
shall be in writing and shall contain appropriate findings of
fact and conclusions of law [and] [t]he court shall state with
particularity, both orally and in the written order of
disposition, the precise terms of the disposition . . . .” N.C.
Gen. Stat. § 7B-2512 (emphasis added).
The district court’s disposition order does not state with
particularity any written findings of fact to support the
conclusion that Charlie had violated the conditions of his
probation. The order simply states, “[Charlie] was previously
given a Level 2 disposition and was placed on probation, [and]
violated the terms of probation set by the court on 08/01/12.”
During his hearing, Charlie admitted to the alleged violations
of the conditions of his probation in exchange for the dismissal
of the felony breaking and entering and felony larceny charges
alleged in the 22 April 2013 petition. However, Charlie’s
admission is not mentioned in the court’s disposition order.
The disposition order certifies that the district court
received, reviewed, and incorporated by reference Counselor -11- Siedliski’s predisposition report, risk assessment, and needs
assessment. The incorporated report states
The Division of Juvenile Justice is recommending that [Charlie] be Committed to a Youth Development Center with consideration for Community Commitment. [Charlie] has an extensive delinquent history including felony adjudications. The alleged pending felonies would have been committed less than two weeks after being discharged from Eckerd Candor. In the interest of public safety, a Commitment is warranted to best address the needs of [Charlie] while safeguarding society.
This narrative is not a sufficient finding of fact supporting
Charlie’s probation revocation. It makes no mention as to how
Charlie violated his probation or why the court determined that
he did so. The report also states that Charlie was in court for
“a VOP for failing to attend the SCORE program as well as not
complying with electronic monitoring.” While Charlie admitted
to these alleged probation violations, his admission is not
included in the disposition order or the predisposition report.
Because Charlie’s admission is not included in the
disposition order or the incorporated predisposition report and
because the court did not make any other findings pertaining to
Charlie’s probation revocation, the court failed to make
sufficient findings of fact in accordance with N.C. Gen. Stat. -12- § 7B-2512. Accordingly, we reverse and remand this case to the
court to make additional findings of fact.
B. Findings of Fact Addressing a Level 3 Disposition
Charlie also argues the district court erred by committing
him to a youth development center because the court failed to
make sufficient findings of fact to show that a level 3
disposition was warranted. We agree.
When a district court properly finds that a juvenile
violated the terms of probation, “the court may continue the
original conditions of probation, modify the conditions of
probation, or . . . order a new disposition at the next higher
level on the disposition chart.” N.C. Gen. Stat. § 7B-2510(e).
Pursuant to N.C. Gen. Stat. § 7B-2501(c) (2013), a trial 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.
Juvenile probation revocation hearings “may be informal and
the court may consider written reports or other evidence -13- concerning the needs of the juvenile.” N.C. Gen. Stat. § 7B-
2501(a) (2013). A court may consider hearsay evidence and
reports that are “relevant, reliable, and necessary to determine
the needs of the juvenile and the most appropriate disposition .
. . .” Id. “[T]he trial court is required to make findings
demonstrating that it considered the N.C.G.S. § 7B-2501(c)
factors in a dispositional order entered in a juvenile
delinquency matter.” In re V.M., 211 N.C. App. at 391–92, 712
S.E.2d at 215 (2011); see also In re Ferrell, 162 N.C. App. 175,
177, 589 S.E.2d 894, 895 (2004).
In In re V.M., this Court reversed and remanded a
juvenile’s disposition because the district court’s level 3
disposition and commitment order did not contain sufficient
findings of fact to permit a determination that the district
court had properly considered the factors set out in N.C. Gen.
Stat. § 7B-2501(c). In re V.M., 211 N.C. App. at 392, 712
S.E.2d at 215. The district court’s disposition and commitment
order stated that the juvenile had previously received a Level 2
disposition, was placed on probation, and had violated the
conditions of his probation. Id. In addition, the order
certified that the district court had received, considered, and
incorporated by reference the predisposition report, risk -14- assessment, and needs assessment. Id. The “Other Findings”
section of the disposition order did not contain “any additional
findings of fact [that] demonstrate[d] that it considered” the
five factors in N.C. Gen. Stat. § 7B-2501(c). Id. at 392, 712
S.E.2d at 216. This Court held that there were insufficient
findings to determine whether the district court had properly
considered all the required factors and reversed and remanded
the case to the district court for a new disposition hearing.
Id.
In In re K.C., ___ N.C. App. ___, 742 S.E.2d 239 (2013),
this Court remanded the case to the district court due to the
district court’s violation of N.C. Gen. Stat. § 7B-2501 by
failing to make sufficient findings of fact in its disposition
order. Id. at ___, 742 S.E.2d at 246. The juvenile argued that
the district court had failed to make its disposition in
accordance with N.C. Gen. Stat. § 7B-2501 because it did not
address certain factors specified in the statute. Id. at ___,
742 S.E.2d at 245–46. The juvenile was adjudicated delinquent
for simple assault and sexual battery. Id. at ___, 742 S.E.2d
at 241. The district court classified the juvenile’s assault as
“minor” and told the juvenile at the hearing that he needed to
understand the consequences of victimizing people. Id. at ___, -15- 742 S.E.2d at 246. This Court assumed that the categorization
and oral statement satisfied the first two factors of N.C. Gen.
Stat. § 7B-2501, but there was nothing in the record that
addressed the remaining three factors. Id. Accordingly, we
held that the court failed to make sufficient findings of fact
regarding the required statutory factors and remanded the case
to the district court to make additional findings of fact on
disposition. Id.
Similar to In re V.M., Charlie’s disposition order states
that he “was previously given a Level 2 disposition and was
placed on probation, [and] violated the terms of probation set
by the court . . . .” see In re V.M., 211 N.C. App. at 392, 712
S.E.2d at 215. The order also states that the court
incorporated by reference Counselor Siedliski’s predisposition
report, risk assessment, and needs assessment and that Charlie
“has been adjudicated for a violent or serious offense and Level
III is authorized by G.S. 7B-2508.” Pursuant to In re K.C., we
can assume that the court’s finding that Charlie had been
adjudicated for a violent or serious offense satisfies the first
factor required in N.C. Gen. Stat. § 7B-2501. In re K.C., ___
N.C. App. at ___, 742 S.E.2d at 246. -16- In the “Other” section of the disposition order, the court
included a narrative that states
[Charlie’s] grandmother, with whom he currently lives, cannot provide the stability and supervision that he needs to thrive and succeed. [Charlie] needs a long- term out-of-home placement that can provide him with structure and stability that he has never had. It is better for [Charlie] to be committed to a Youth Development Center, with a strong recommendation for a community commitment, like a foster home or other group home, so that he can receive immediate services in a stable environment.
The court’s discussion of Charlie’s need for a “long-term out-
of-home placement that can provide him with structure and
stability” relates to the fifth factor regarding Charlie’s
rehabilitative and treatment needs.
Although the district court’s disposition order addresses
the first and fifth statutory factors, it does not address the
second, third, or fourth required factors. However, the court’s
disposition order incorporated Counselor Siedliski’s
predisposition report, risk assessment, and needs assessment, so
we now look to whether the report and assessments properly
addressed the required factors.
Counselor Siedliski’s report states that Charlie was in
court for a probable cause hearing for “Felony B & E and Larceny
after B & E” and classifies the current offense as “Serious.” -17- Under In re K.C., this classification satisfies the first factor
required in N.C. Gen. Stat. § 7B-2501. In re K.C., ___ N.C.
App. at ___, 742 S.E.2d 246.
The report does not, however, address the second statutory
factor because it fails to mention anything pertaining to the
need to hold Charlie accountable. The predisposition report
states, “[Charlie] has an extensive delinquent history including
felony adjudications.” However, Charlie’s delinquent history
and past adjudications do not do not constitute a finding by the
court that Charlie needs to currently be held accountable.
The predisposition report also states, “[c]ommitment is
warranted to best address the needs of [Charlie] while
safeguarding society.” This demonstrates that the district
court considered the public’s safety in determining the proper
disposition for Charlie and thus, properly addressed the third
statutory factor.
The fourth factor requiring the court to consider the
degree of Charlie’s culpability is not addressed in Counselor
Siedliski’s predisposition report. The statute requires the
court to address the “circumstances of the particular case” in
determining the juvenile’s degree of culpability. N.C. Gen.
Stat. § 7B-2501(c). The report makes no mention of Charlie’s -18- degree of culpability. The report states that Charlie was in
court for “a VOP for failing to attend the SCORE program as well
as not complying with electronic monitoring.” Yet, Charlie’s
admission to violating the conditions of his probation is not
included in the report and there is no other evidence in the
report concerning Charlie’s culpability in violating his
probation. The report also states, “[t]he alleged pending
felonies would have been committed less than two weeks after
[Charlie was] discharged from Eckerd Candor.” However, the
alleged pending charges mentioned in the report were voluntarily
dismissed by the State. The report makes no other mention of
Charlie’s current culpability and therefore does not properly
address the fourth factor.
The fifth factor discusses the “rehabilitative and
treatment needs of the juvenile indicated by a risk and needs
assessment.” N.C. Gen. Stat. § 7B-2501(c). In determining
Charlie’s disposition, the district court reviewed and
incorporated Counselor Seidliski’s report, risk assessment, and
needs assessment. The predisposition report recommends “that
[Charlie] be Committed to a Youth Development Center with
consideration for Community Commitment.” This recommendation
combined with the incorporation of Counselor Siedliski’s risk -19- assessment and needs assessment satisfies the fifth statutory
factor.
Taking the district court’s disposition order and the
incorporated report and assessments as a whole, the district
court properly addressed only three of the five required
statutory factors. The order makes no findings showing that the
court considered factors two and four in determining Charlie’s
disposition. Therefore, the court’s order “contains
insufficient findings to allow this Court to determine whether
it properly considered all of the factors required by N.C.G.S. §
7B-2501(c).” In re V.M., 211 N.C. App. at 392, 712 S.E.2d at
216 (emphasis added). Accordingly, because the district court’s
order in this case fails to address two of the five required
factors under N.C. Gen. Stat. § 7B-2501(c), we hold that the
court failed to make sufficient findings of fact establishing
that a level 3 disposition was warranted. We reverse the
district court’s disposition and remand to the district court to
make additional findings of fact.
C. Abuse of Discretion
Charlie contends the district court abused its discretion
because it based his commitment on the fact that his parents and
guardians could not provide him with a stable and nurturing -20- environment. Since we have already determined the district
court failed to make the requisite findings of fact in its
disposition order and remanded this case for a new disposition
hearing, we need not address this issue.
V. Conclusion
For the foregoing reasons, the decision of the district
court is
REVERSED AND REMANDED.
Judge ERVIN and DAVIS concur.
Report per Rule 30(e).