IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-267
No. COA20-299
Filed 15 June 2021
Union County, No. 09 JB 44
IN THE MATTER OF: K.N.H.
Appeal by juvenile from orders entered 23 May 2019 by Judge William F.
Helms, III in Union County District Court. Heard in the Court of Appeals 11 May
2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Erika N. Jones, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H. Love, for Defendant-Appellant.
CARPENTER, Judge.
¶1 Appellant K.N.H. appeals from an order on motion for review (the “Order on
Motion for Review”) dated 23 May 2020, concluding K.N.H. violated the conditions of
probation and ordering an entry of a Level 3 disposition, and from a disposition and
commitment order (the “Disposition and Commitment Order”) entered 23 May 2020
committing him to a youth development center (“YDC”). On appeal, he argues the IN RE: K.N.H.
Opinion of the Court
trial court erred in imposing a Level 3 disposition based solely on its finding that he
had violated an oral condition of probation. Further, he asserts that the trial court
erred in entering the Level 3 disposition by failing to orally state the duration of the
disposition at the time of commitment to the YDC, as statutorily required. For the
following reasons, we affirm.
I. Factual & Procedural Background
¶2 In pertinent part, the record reveals the following: on 14 December 2017, an
adjudication hearing was held in connection with four juvenile petitions the State
filed against K.N.H., including common law robbery. K.N.H. admitted to the lesser
offense of larceny from a person for the common law robbery allegation. The State
dismissed the remaining three charges against him. The trial court entered a Level
1 disposition and placed K.N.H. on probation for a period of twelve months.
¶3 On 3 May 2018, the State filed a juvenile petition against K.N.H. alleging one
count of possession of stolen goods. On 28 June 2018, K.N.H. admitted to the offense
of possession of stolen goods. The trial court ordered K.N.H. to Level 2 probation for
twelve months.
¶4 On 23 August 2018, the State filed three additional petitions against K.N.H.
alleging attempted robbery with a dangerous weapon, minor in possession of a
handgun, and assault by pointing a gun. On 27 September 2018, the court conducted
an adjudication hearing. At the hearing, the offense of robbery with a dangerous IN RE: K.N.H.
weapon was amended to the offense of attempted common law robbery pursuant to
K.N.H.’s Alford plea.1 K.N.H. admitted to the offense of possessing a handgun, and
the State dismissed the remaining charge. The case was continued for disposition
until 11 October 2018.
¶5 On 11 October 2018, the trial court entered its dispositional order and placed
K.N.H. on Level 2 probation for a period of twelve months under the previous terms
and conditions as well as the additional conditions imposed by the 11 October 2018
supplemental order for conditions of probation (the “Supplemental Order”), which the
court incorporated by reference and attached to the dispositional order. The
Supplemental Order required K.N.H. to, inter alia, “submit to [e]lectronic
[m]onitoring for 90 days and comply with all conditions set by the [c]ourt [c]ounselor.”
¶6 On 9 January 2019, a juvenile court counselor filed a motion for review alleging
K.N.H. had “violated the conditions imposed by the [c]ourt by receiving new
delinquent charges that include[d] using a handgun.” Further, it was based on
K.N.H.’s violations of the conditions imposed by the 11 October 2018 dispositional
order, including remaining on good behavior and not violating any laws; not
possessing a firearm, explosive device, or other deadly weapon; and submitting to
1 In North Carolina v. Alford, 400 U.S. 25, 37–38, 27 L. Ed. 2d 162, 171–72, 91 S. Ct. 160, 167–
68 (1970), the Supreme Court of the United States held a defendant may enter a “plea containing a protestation of innocence” when the defendant intelligently concludes that a guilty plea is in his best interest, and the record “contains strong evidence of actual guilt.” IN RE: K.N.H.
electronic monitoring for ninety days and complying with all conditions set by the
court counselor.
¶7 On 17 January 2019, the trial court held a probation review hearing, and
K.N.H. was ordered to “remain in secure custody” due to his status as a “danger to
persons.” K.N.H. remained in secure custody until the adjudication and secure
hearing on 23 May 2019.
¶8 On 23 May 2019, the trial court held a hearing in connection with the motion
for review before the Honorable W. Robert Bell Pomeroy in Union County District
Court. The prosecutor for the State informed the court that it was proceeding only
on the allegation that K.N.H. willfully violated the condition of submitting to
electronic monitoring. K.N.H. denied the allegation.
¶9 At the hearing, Stephanie Missick (“Ms. Missick”), the juvenile court counselor
over K.N.H.’s case, testified K.N.H. and his parent signed a form for the monitoring
equipment in case it was damaged and, at that time, they “talked about the
[probation] conditions.” She mentioned, “[K.N.H.] wasn’t to leave unless he was with
his parent.” If K.N.H. was given “time out,” meaning time to be outside of his home
on electronic monitoring, Ms. Missick “would have to go in the computer and put time
out, he had to be with his parent.” According to Ms. Missick, she gave K.N.H. time
out near the holidays, including multiple days in December 2018 and on 1 January
2019. She also testified that when K.N.H. was placed on the electronic monitoring, IN RE: K.N.H.
she told him, “If you go anywhere, you’ve got to be with [a parent].” Finally, Ms.
Missick testified that K.N.H. told her that he “did leave” and that “[h]e wasn’t with
his dad” for the entire “time out” period on 1 January 2019.
¶ 10 K.N.H.’s probation violation in this case occurred on 1 January 2019. Ms.
Missick scheduled K.N.H. time out from 11:00 a.m. to 7:00 p.m. in light of the New
Year’s Day holiday. K.N.H.’s mother testified that she had K.N.H.’s maternal
grandmother take K.N.H. to the Icemorlee area of Monroe to visit his father and
family because she did not have a vehicle herself. She further testified that his
grandmother saw K.N.H.’s father at a gas station, and she dropped K.N.H. off with
him. K.N.H.’s father took him to his aunt’s house where they would have dinner with
family. When the prosecutor asked K.N.H.’s mother if she “understood that when
[K.N.H.] was home with [her] he was supposed to be with [her]”, she responded, “[a]nd
he was. Yes, ma’am.”
¶ 11 According to K.N.H.’s father, once he picked up K.N.H. from the gas station at
about 1:00 p.m., they went to K.N.H.’s aunt’s house for a dinner with 15 or 16 family
members. K.N.H.’s father testified he last saw K.N.H. “standing on the porch” of the
house at around 2:00 p.m. He further testified he did not know where K.N.H. was
from approximately 2:00 p.m. to 5:00 p.m. When asked if he “knew that [he] had to
have eyes on [K.N.H.] and know where he was at all times,” K.N.H’s father responded,
“I didn’t have conversations, but I was there. I heard things.” K.N.H.’s father IN RE: K.N.H.
acknowledged that both he and K.N.H. were present when Ms. Missick told them that
K.N.H. had to be with a parent at all times when he was on time out.
¶ 12 After hearing closing arguments, the court found K.N.H. “was in willful
violation of [his] probationary conditions.” Consequently, the court committed
K.N.H. to a YDC for an indefinite period.
¶ 13 On 23 May 2019, the Honorable Judge Williams F. Helms III entered the Order
on Motion for Review, which found the allegations were proven by the greater weight
of the evidence. Additionally, Judge Helms entered the written Disposition and
Commitment Order, imposing a Level 3 disposition and committing K.N.H. to a YDC
for a minimum period of six months and a maximum period until his eighteenth
birthday. K.N.H. filed a timely, written notice of appeal from the 23 May 2019 Order
on Motion for Review and Disposition and Commitment Order.
II. Jurisdiction
¶ 14 This Court has jurisdiction to address the juvenile’s appeal from the final
orders pursuant to N.C. Gen. Stat. § 7B-2602 (2019) and N.C. Gen. Stat. § 7B-2604
(2019).
III. Issues
¶ 15 The issues on appeal are whether (1) the trial court erred by entering a Level
3 disposition based solely on its finding that K.N.H. violated a condition of probation
for which he did not receive written notice; and (2) the trial court erred by entering a IN RE: K.N.H.
Level 3 disposition without stating the precise duration of K.N.H.’s commitment to
the YDC in its oral order of disposition.
IV. Standard of Review
¶ 16 “When a juvenile argues to this Court that the trial court failed to follow a
statutory mandate, the error is preserved and is a question of law reviewed de novo.
Under a de novo review, the [C]ourt considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” In re E.M., 263 N.C. App. 476, 479,
823 S.E.2d 674, 676 (2019) (citations omitted) (emphasis added).
V. Violation of Electronic Monitoring Probation Condition
¶ 17 In his first argument, K.N.H. contends the trial court erred in failing to follow
N.C. Gen. Stat. § 7B-2512(a), which mandates the court to “state with particularity”
the terms and conditions of probation in both the oral and written orders of
disposition since probation is a “precise term[ ] of the disposition . . . .” N.C. Gen.
Stat. § 7B-2512(a) (2019). Furthermore, he asserts that since the trial court failed to
make such written findings, the condition of probation requiring him to be in the
presence of one of his parents while on electronic monitoring is invalid and could not
be willfully violated; thus, the trial court abused its discretion by entering a Level 3
disposition based on K.N.H.’s violation of that condition of probation. The State
argues that this issue was not properly preserved for appellate review. The State
contends, even if it were properly preserved, the probation condition imposed by the IN RE: K.N.H.
trial court was valid and enforceable, and the violation of the condition permitted the
court to enter a Level 3 disposition.
¶ 18 After careful review, we find K.N.H.’s argument that the trial court failed to
follow a statutory mandate is preserved, see In re E.M., 263 N.C. App. at 479, 823
S.E.2d at 676, and agree with the State that the trial court’s order of electronic
monitoring was consistent with the pertinent statutory requirements.
¶ 19 “The purpose of dispositions in juvenile actions is to design an appropriate plan
to meet the needs of the juvenile and to achieve the objectives of the State in
exercising jurisdiction, including the protection of the public.” N.C. Gen. Stat. § 7B-
2500 (2019). The disposition developed by the trial court for each case is designed to
“[p]romote public safety”; “[e]mphasize[ ] accountability and responsibility” of the
juvenile’s parents and guardians as well as the juvenile; and “[p]rovide[ ] appropriate
consequences, treatment, training and rehabilitation” for the juvenile. N.C. Gen.
Stat. § 7B-2500 (1)–(3).
¶ 20 N.C. Gen. Stat. § 7B-2512 provides the requirements for the dispositional
order:
[t]he dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law. The court shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition including the kind, duration, and the person who is responsible for carrying out the disposition and the person or agency in whom custody is vested. IN RE: K.N.H.
N.C. Gen. Stat. § 7B-2512(a).
¶ 21 A “court exercising jurisdiction over a juvenile who has been adjudicated
delinquent” may impose certain dispositional alternatives in accordance with N.C.
Gen. Stat. § 7B-2508, including “plac[ing] the juvenile on probation under the
supervision of a juvenile court counselor, as specified in [N.C. Gen. Stat. § 7B-2510].”
N.C. Gen. Stat. § 7B-2506(8) (2019).
¶ 22 N.C. Gen. Stat. § 7B-2510 provides the conditions of probation for the
underlying dispositional alternatives upon which a delinquent juvenile may be placed
pursuant to N.C. Gen. Stat. § 7B-2506(8). Under subsection (a), the conditions of
probation ordered by a court must be “related to the needs of the juvenile and [be]
reasonably necessary to ensure that the juvenile will lead a law-abiding life.” N.C.
Gen. Stat. § 7B-2510(a). Under subsection (b), the court may impose the “regular
conditions of probation specified in subsection (a),” or it may choose from certain other
conditions. N.C. Gen. Stat. § 7B-2510(b). One such condition of probation a court
may order in a juvenile proceeding under subsection (b) is the juvenile “[c]ooperate
with electronic monitoring” so long as the juvenile is “directed to comply by the chief
court counselor” and “the juvenile is subject to Level 2 dispositions pursuant to [N.C.
Gen. Stat. § 7B-2508] . . . .” N.C. Gen. Stat. § 7B-2510(b)(4).
¶ 23 “When the language of a statute is clear and unambiguous, there is no room IN RE: K.N.H.
for judicial construction and the courts must give the statute its plain and definite
meaning, and are without power to interpolate, or superimpose, provisions and
limitations not contained therein.” In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386,
388–89 (1978) (citation omitted).
¶ 24 In this case, the trial court ordered K.N.H. to submit to electronic monitoring
for ninety days pursuant to N.C. Gen. Stat. § 7B-2510(b) and to comply with all
conditions set by the court counselor in the court’s Supplemental Order. The
Supplemental Order also specifically stated that if K.N.H. were to “violate[ ] curfew
or any conditions set forth by the court counselor[, then] he shall be placed back in
detention.”
¶ 25 N.C. Gen. Stat. § 7B-2506(8) “clear[ly] and unambiguous[ly]” allows
“place[ment of] the juvenile on probation under the supervision of a juvenile court
counselor.” See Id. at 239, 244 S.E.2d at 389–90; N.C. Gen. Stat. § 7B-2506(8).
Furthermore, N.C. Gen. Stat. § 7B-2510(b) allows a court to impose the
“[c]ooperat[ion] with electronic monitoring” as a condition of probation in certain
circumstances. Here, the statutory requirements were fulfilled for the court to
impose electronic monitoring because K.N.H. was subject to a Level 2 disposition, and
the chief court counselor directed him to comply with the condition of probation.
Based on the plain language of the statute, only the specific condition of probation
upon which the juvenile is placed—in this case, electronic monitoring—was required IN RE: K.N.H.
to be precisely identified in the dispositional order. The Juvenile Code does not
require that the disposition include the precise terms and conditions or rules of
electronic monitoring that the court counselor imposes on the juvenile. Had the
General Assembly intended district courts to include such detailed conditions, it
would have included such language in the statute. See e.g., N.C. Gen. Stat. § 7B-
2506(6) (stating a dispositional alternative may include an order for “the juvenile to
perform up to 100 hours supervised community service consistent with the juvenile’s
age, skill, and ability, specifying the nature of the work and the number of hours
required”).
¶ 26 In arguing that specific juvenile conditions of probation must be in writing to
be valid, K.N.H. cities to the parallel adult criminal provision on probation conditions,
which specifically requires that “[a] defendant released on supervised probation . . .
be given a written statement explicitly setting forth the conditions on which he is
being released” as well as a “written statement setting forth [any] modifications.” See
N.C. Gen. Stat. § 15A-1343(c). This argument is without merit. Since the General
Assembly did not expressly provide the same requirements for juvenile probation in
the Juvenile Code as the Criminal Procedure Act provides for adult criminals, we give
the Juvenile Code statute its “plain and definite meaning” without interpolating
language from the criminal statutes. See In re Banks, 295 N.C. at 239, 244 S.E.2d at
388. IN RE: K.N.H.
¶ 27 Additionally, “[t]he General Assembly has demonstrated through the Juvenile
Code its desire to give the courts a broad range of alternatives in juvenile delinquency
cases, with the manifest goal of creating optimal solutions tailored to the particular
circumstances of each wayward child.” In re D.L.H., 364 N.C. 214, 219, 694 S.E.2d
753, 756 (2010) (holding the adult criminal statute governing credit for time served
before disposition is inapplicable to juvenile proceedings based on the plain language
of the Criminal Procedure Act and the Juvenile Code combined with the “legislative
policy of affording the courts a wide variety of options in juvenile matters”).
¶ 28 Like our Supreme Court in In re D.L.H., we refuse to limit the options of the
district courts by subjecting delinquent juveniles to adult criminal statutes where
there is no statutory indication that a given criminal statute applies to a juvenile
proceeding. Requiring the courts to set forth the specific rules, terms, and conditions
of each dispositional alternative or condition of probation when not statutorily
mandated would conflict with the goals of the Juvenile Code to provide “a broad range
of alternatives” in juvenile proceedings and would interfere with the district court’s
power to delegate certain tasks and responsibilities to third parties involved in the
dispositional plans of delinquent juveniles. See id. at 219, 694 S.E.2d at 756.
Moreover, in its role as an appellate court, the Court of Appeals is limited to
interpreting statutes—not creating or enacting statutes as these are functions
reserved for the legislatures. Share v. N.C. State Univ. Veterinary Teaching Hosp., IN RE: K.N.H.
219 N.C. App. 117, 127, 723 S.E.2d 352, 358 (2012) (“This Court is an error-correcting
court, not a law-making court.”).
¶ 29 Relying on the unpublished case of In re E.M., K.N.H. next maintains that oral
notice of a probation condition was insufficient because “[a] juvenile must receive
written notice of a condition of probation for the condition to be valid.” We disagree.
¶ 30 In the case of In re E.M., the trial court judge orally announced that the
juvenile was to cooperate with electronic monitoring if directed to do so by the chief
court counselor. 227 N.C. App. 649, 745 S.E.2d 374, No. COA13-13, 2013 N.C. App.
LEXIS 600, at *11-12 (N.C. App. June 4, 2013) (unpublished). Although the oral
announcement of the disposition by the trial court judge was properly given, the
written disposition did not provide that the juvenile was subject to electronic
monitoring at the discretion of the court counselor. Id. at *11. Our Court held that
“[b]ecause the written disposition order d[id] not require [electronic monitoring as a]
condition of probation,” the oral order was invalid and inapplicable to the juvenile
since it violated the statutory mandate imposed by N.C. Gen. Stat. § 7B-2510(b)(4).
Id. at *11.
¶ 31 In the instant case, unlike In re E.M., there is a written disposition order
requiring K.N.H. to cooperate with electronic monitoring and all conditions set by the
court counselor. The parties do not dispute whether K.N.H. received oral notice of
the condition to submit to electronic monitoring. Rather, the parties disagree as to IN RE: K.N.H.
whether “all conditions set by the [c]ourt [c]ounselor” pursuant to the Supplemental
Order were required to be in writing to be valid, particularly the condition that
K.N.H. had to be in the presence of one of his parents while on electronic monitoring
leave. Therefore, we do not find In re E.M. on point or persuasive in the case sub
judice.
¶ 32 Our Court has held that a trial court may allow a juvenile court counselor to
impose certain conditions and make certain determinations with respect to the
juveniles they supervise so long as the court does not improperly delegate its
authority when the statute provides the power and discretion to order a dispositional
alternative or condition of probation is with the court. See In re M.A.B., 170 N.C.
App. 192, 194–95, 611 S.E.2d 886, 887–88 (2005) (affirming a disposition ordering a
juvenile to “cooperate and participate in a residential treatment program as directed
by [the] court counselor or mental health agency” where the “specifics of the day-to-
day program” were left to the discretion of the court counselor); In re Hartsock, 158
N.C. App. 287, 291–92, 580 S.E.2d 395, 398–99 (2003) (reversing in part a
dispositional order where the trial court ordered the juvenile to cooperate with
placement in a residential treatment facility but vested counselors with the discretion
of determining whether to order the placement).
¶ 33 In In re S.R.S., we considered the underlying conditions of probation terms
entered pursuant to N.C. Gen. Stat. § 7B-2510 and considered whether the trial court IN RE: K.N.H.
impermissibly delegated its authority in ordering those conditions. 180 N.C. App.
151, 157–60, 636 S.E.2d 277, 282–84 (2006). We noted that although the S.R.S. Court
considered whether the trial court properly ordered conditions of probation under
N.C. Gen. Stat. § 7B-2510, the case of In re Hartsock, 158 N.C. App. 287, 580 S.E.2d
395 (2004), which dealt with the trial court’s discretion to order dispositional
alternatives under N.C. Gen. Stat. § 7B-2506, was nevertheless “persuasive and
applicable” to its analysis. In re S.R.S., at 158, 636 S.E.2d at 283. The record in In
re S.R.S. failed to support placing conditions on the juvenile for an out-of-home
placement and cooperation with counseling and assessments as recommended by the
court counselor. Id. at 159–60, 636 S.E.2d at 283–84. However, we upheld a condition
of probation ordered by the trial court which stated that, “the juvenile abide by any
rules set out by the Court Counselor and the juvenile’s parents . . . .” Id. at 158–59,
636 S.E.2d at 283. We reasoned that the condition imposing rules set by a court did
“not vary substantially from that allowed per [N.C. Gen. Stat. § 7B-2510(a)(3)].” Id.
at 159, 636 S.E.2d at 283. We reversed the probation conditions for out-of-home
placement and cooperation with counseling and assessments in the event they were
not already mooted by the expiration of the juvenile’s probation term. Id. at 159–60,
636 S.E.2d at 283–84.
¶ 34 Here, the trial court continued K.N.H.’s Level 2 probation on 11 October 2018
for an additional 12-month period under the previously ordered terms and conditions IN RE: K.N.H.
in addition to new terms and conditions found in the Supplemental Order, including
the condition that K.N.H. “submit to [e]lectronic [m]onitoring for 90 days and comply
with all conditions set by the [c]ourt [c]ounselor.” The trial court did not vary the
condition of probation from that allowed by statute. See In re S.R.S., 180 N.C. App.
at 159, 636 S.E.2d at 283; see also N.C. Gen. Stat. § 7B-2510(b)(4). The trial court
properly ordered electronic monitoring and appropriately delegated the task of
supervision of the electronic monitoring to K.N.H.’s court counselor. The specific
details concerning the electronic monitoring rules, after the condition of probation
was ordered by the court, were properly delegated to the juvenile court counselor. See
In re M.A.B., 170 N.C. App. at 192, 611 S.E.2d at 886. Therefore, we hold the trial
court properly entered a Level 3 disposition solely on K.N.H.’s violation of the specific
terms and conditions set forth by the juvenile court counselor with respect to his
electronic monitoring condition of probation.
VI. Oral Announcement of YDC Commitment Duration
¶ 35 In his second argument, K.N.H. asserts the trial court erred in “fail[ing] to
state with particularity the precise duration of [his] commitment to YDC in open
court”; thus, “the Level 3 disposition must be vacated.” The State contends this
argument is moot since K.N.H. was released from the YDC on 1 June 2020 and placed
on post-release supervision. Alternatively, the State argues that the trial court
substantially complied with N.C. Gen. Stat. § 7B-2512, and K.N.H. cannot show IN RE: K.N.H.
prejudice resulting from the trial court’s failure to include his “maximum
commitment time in its oral pronouncement during the disposition.”
A. Mootness
¶ 36 We first address the State’s contention that K.N.H.’s challenge to the Level 3
disposition has been rendered moot on the basis that he was released from the YDC
on 1 June 2020. The State argues that any error related to the disposition and
commitment order cannot be cured since “[K.N.H.] already served his entire
commitment at a [YDC].” We disagree. Although the record is unclear as to whether
K.N.H. continues to be subject to post-release supervision, there remains a possibility
he is under supervision, or faces another collateral legal consequence, resulting from
the alleged error. See In re S.R.S, 180 N.C. App. at 157–58, 636 S.E.2d at 282
(hearing a juvenile’s arguments related to conditions of probation even though the
Court of Appeals was uncertain whether the issues were mooted due to the juvenile’s
release from custody and probation).
¶ 37 Generally, “when the terms of a challenged trial court judgment have been
carried out, a pending appeal of that judgment is moot because the appellate court
decision cannot have any practical effect on the existing controversy.” In re A.K., 360
N.C. 449, 452, 628 S.E.2d 753, 755 (2006) (citation and quotation marks omitted).
However, in cases where “the continued existence of the judgment itself may result
in collateral legal consequences for the appellant” or where there are “[p]ossible IN RE: K.N.H.
adverse consequences flowing from [the] judgment,” there continues to be a live
controversy, which prevents the case from becoming moot. Id. at 452, 628 S.E.2d at
755. For example, a juvenile’s appeal from a disposition and commitment order would
not become moot where the juvenile served his sentence but faced a possibility of
“adverse consequence flowing from a judgment,” such as post-release supervision.
See id. at 452, 629 S.E.2d at 755; see also In re J.L.H., 230 N.C. App. 214, 219, 750
S.E.2d 197, 201 (2013) (holding a juvenile’s appeal from a court’s denial of his motion
to release was not rendered moot by his release from commitment to a YDC where
the juvenile had to comply with conditions of post-release supervision).
¶ 38 The State relies on In re Swindell as support for its argument that K.N.H.’s
challenge to the trial court’s oral pronouncement is rendered moot. 326 N.C. 473, 390
S.E.2d 134 (1990). In In re Swindell, the juvenile contended that the trial court erred
in committing him “without first fully considering possible alternative treatment
measures . . . .” Id. at 474, 390 S.E.2d at 135. Our Supreme Court held the issue was
rendered moot since the juvenile had already been released from custody. Id. at 474,
390 S.E.2d at 135. The opinion makes no mention of the juvenile facing post-release
supervision or any other “[p]ossible adverse consequences flowing from [the]
judgment.” See In re A.K., 360 N.C. at 452, 629 S.E.2d at 755. Therefore, In re
Swindell is distinguishable from the instant case, because here, a potential adverse
consequence of the disposition on the juvenile—specifically, the possibility of post- IN RE: K.N.H.
release supervision—has been identified by the appellant, K.N.H.
¶ 39 Here, K.N.H.’s date of commitment was 23 May 2019, and he was released
from the YDC on post-release supervision on 1 June 2020. The post-release
supervision was to be in effect for a minimum of three months and maximum of one
year. However, we are unable to determine, based on the record and its supplement,
whether K.N.H. continues to be subject to post-custody supervision. Since it is
possible K.N.H. continues to be on post-release supervision or faces other potentially
adverse consequences from the purported sentencing error, we will hear the merits
of his appeal although we are aware the “passage of time may have rendered the issue
. . . moot.” In re Lineberry, 154 N.C. App. 246, 256, 572 S.E.2d 229, 236 (2002)
(recognizing the “passage of time may have rendered the issue of [a] juvenile’s custody
pending appeal moot”).
B. Failure to Comply with N.C. Gen. Stat. §§ 7B-2513(a4) and 7B-2512(a)
¶ 40 On appeal, K.N.H. argues the trial court committed reversible and prejudicial
error by not adhering to the statutory mandates set out in N.C. Gen. Stat. §§ 7B-
2513(a4) and 7B-2512(a). Specifically, the trial court judge failed notify K.N.H. of the
precise duration of his commitment to the YDC at the 23 May hearing when the court
orally announced the disposition. The State concedes “the trial court did not include
[K.N.H.’s] maximum commitment time in its oral pronouncement,” but contends
K.N.H. cannot show any prejudice resulting from the trial court’s error. We agree IN RE: K.N.H.
with the State that the juvenile has not sufficiently shown prejudice stemming from
the error.
¶ 41 As previously stated above, N.C. Gen. Stat. § 7B-2512 requires, inter alia, the
courts to “state with particularity, both orally and in the written order of disposition,
the precise terms of the disposition including the kind[ and] duration . . . .” N.C. Gen.
Stat. § 7B-2512(a). Similarly, N.C. Gen. Stat. § 7B-2513 provides, inter alia, “[a]t the
time of commitment to a youth development center, the court shall determine the
maximum period of time the juvenile may remain committed . . . and shall notify the
juvenile of that determination.” N.C. Gen. Stat. § 7B-2513(a4).
¶ 42 In this case, the trial court made the following pertinent statement in open
court when it announced K.N.H.’s disposition:
In this case, I’m going to commit the juvenile . . . to the Division of Adult Probation of Juvenile Justice for placement in a Youth Development Center for an indefinite period and order that you cooperate with all the recommendations for any counseling while in YDC, as well as on post-release; submit to random drug screens on post- release; and if the Chief Court Counselor requests it, I’ll order you to submit to electronic monitoring for at least 60 days when placed on post-release supervision.
¶ 43 Since the trial court only provided the placement in the YDC would be for an
“indefinite period,” it failed to meet the statutory requirements to “determine the
maximum period of time [K.N.H. was to] remain committed” and to state the “precise
terms of the disposition including the . . . duration.” See N.C. Gen. Stat. §§ 7B-2512(a), IN RE: K.N.H.
7B-2513(a4).
C. Prejudicial Error
¶ 44 K.N.H. argues the trial court’s failure in announcing the precise duration of
his commitment was prejudicial because it “denied [him] the right to be present when
the trial court selected his disposition,” thus, he was “deprived of the opportunity to
ask the judge questions about the Level 3 disposition.”
¶ 45 We recognize North Carolina courts have made clear that the “State has a
greater duty to protect the rights of a respondent in a juvenile proceeding than in a
criminal proceeding.” State v. Fincher, 309 N.C. 1, 24, 305 S.E.2d 685, 699 (1985)
(citation omitted); see also In re T.E.F., 359 N.C. 570, 614 S.E.2d 296 (2005); In re
Meyers, 25 N.C. App. 555, 558, 214 S.E.2d 268, 270 (1975). However, we reject
K.N.H.’s contention that any time “[a] trial court violates a statutory mandate at a
[juvenile] dispositional hearing, the juvenile is not required to make a[ ] prejudice
showing, as the error is prejudicial per se.” See In re J.L.B.M., 176 N.C. App. 613,
628, 627 S.E.2d 239, 248 (2006) (noting the trial court’s violation of N.C. Gen. Stat. §
7B-2605 had “no effect on the juvenile’s adjudication or disposition”); In re J.J., 216
N.C. App. 366, 376, 717 S.E.2d 59, 66 (2011) (holding the trial court’s failure to
bifurcate its delinquency proceedings was non-prejudicial error).
¶ 46 K.N.H. maintains the trial court’s failure to adhere to the statutory mandates
constitutes reversible, prejudicial error and cities to In re W.L.M., 218 N.C. App. 455, IN RE: K.N.H.
721 S.E.2d 764, COA11-723, 2012 N.C. App. LEXIS 169 (N.C. App. Feb. 7, 2012)
(unpublished opinion); In re B.P., 169 N.C. App. 728, 612 S.E.2d 328 (2005); In re
J.L.B.M., 176 N.C. App. at 628, 627 S.E.2d at 248; and In re T.E.F., 359 N.C. 570, 614
S.E.2d 296 (2005) as support for his argument. We find each case readily
distinguishable from the facts of this case. We hold the trial court’s error in failing to
orally state the precise duration of the disposition was without prejudice.
¶ 47 In In re W.L.M., which is unpublished, the trial court erred by failing to state
in open court the duration of the juvenile’s commitment and in erroneously recording
the written order. 218 N.C. App. 455, 721 S.E.2d 764, COA11-723, 2012 N.C. App.
LEXIS 169, at *2. The trial court initially checked the “indefinite commitment” box
on the written disposition order, then attempted to amend the commitment period on
the order by crossing out the previously marked box and checking the “definite
period” box “without designating a duration for that period.” Id. at *3. We concluded
that the modified written order did “not state the duration of confinement with
certainty or particularity.” Id. Our Court “vacate[d] the disposition portion of the
order and remand[ed] for a new hearing.” Id.
¶ 48 In re B.P. does not concern a juvenile dispositional order, but rather the timely
entry of dispositional order entered after the court adjudicated a parent’s minor
children neglected and dependent. 169 N.C. App. at 730, 612 S.E.2d at 329–30 (2005).
The pertinent portion of the statute in that case stated, “[t]he dispositional order shall IN RE: K.N.H.
be in writing, signed, and entered no later than 30 days from the completion of the
hearing . . . .” Id. at 735, 612 S.E.2d at 333 (citing N.C. Gen. Stat. § 7B-905(a) (2003).
Additionally, the statute required the disposition to state the “duration” and “the
person who is responsible for carrying out the disposition and the person or agency
in whom custody is vested.” Id. at 735, 612 S.E.2d at 333; see also N.C. Gen. Stat. §
7B-905(a). The oral disposition announced in open court failed to indicate the “person
or agency in whom custody is vested” and the “duration” of the order. Id. at 736, 612
S.E.2d at 333. Moreover, the written dispositional order was not timely filed as
required by statute due to a clerical error. Id. at 735, 612 S.E.2d at 332–33. We held
the respondent was prejudiced because she was “not provided with necessary
information from which she could prepare for future proceedings” and had “no notice
of the particular findings of fact or conclusions of law upon which the trial court based
its decision.” Id. at 736, 612 S.E.2d at 333.
¶ 49 In In re J.L.B.M., the trial court properly orally announced the juvenile’s
commitment would not exceed his eighteenth birthday but omitted the maximum
term of commitment from the written order as required under N.C. Gen. Stat. § 7B-
2513(a). In re J.L.B.M, 176 N.C. App. at 628, 627 S.E.2d at 249. We remanded the
dispositional order to the trial court for correction of the clerical error. Id. at 628, 627
S.E.2d at 248.
¶ 50 In In re T.E.F., our Supreme Court affirmed the Court of Appeal’s decision to IN RE: K.N.H.
reverse and remand a matter to the trial court for a new juvenile adjudicatory hearing
where the trial court had committed reversible error by not meeting all six
requirements enumerated under N.C. Gen. Stat. § 7B-2407. In re T.E.F., 359 N.C. at
572, 614 S.E.2d at 297. The Court reasoned that meeting all six requirements was
“paramount and necessary in accepting a juvenile’s admission as to guilt”; therefore,
if any of the requirements are lacking, an adjudication based on the improper
admission must be reversed. Id. at 574, 614 S.E.2d at 298. In declining to adopt the
“totality of the circumstances” standard of review, the Court emphasized the
importance of ensuring juveniles understand the “consequences of admitting their
guilt.” Id. at 575–76, 614 S.E.2d at 299.
¶ 51 K.N.H. provides no case in which our Court held a reversible error had
occurred solely based on the trial court’s failure to orally announce the duration of
the order of disposition, and we decline to do so here. Here, the written disposition
order clearly indicated that K.N.H. was committed to the YDC for a minimum period
of six months and a maximum period until his eighteenth birthday despite the trial
court’s failure to orally state the duration of the commitment. Furthermore, K.N.H.
was apprised of the fact that he was being committed to the YDC at the 23 May 2019
hearing. Since only the Level 3 disposition authorizes commitment of a juvenile
pursuant to the Juvenile Code, K.N.H. was present when the trial court selected his
disposition, and he had the opportunity to ask the trial court judge questions about IN RE: K.N.H.
the disposition. See N.C. Gen. Stat. § 7B-2508(e) (2019). Although the trial court
erred in orally stating the disposition, K.N.H. has not adequately shown that the
statutory violations prejudiced him. See In re Bullabough, 89 N.C. App. 171, 178,
183, 365 S.E.2d 642, 646, 649 (1988) (holding the trial court’s errors in unlawfully
detaining the juvenile before the adjudication and in failing to direct the Clerk of the
Superior Court to transcribe the record did not constitute reversible, prejudicial
errors); see also Glenn v. Raleigh, 248 N.C. 378, 383, 103 S.E.2d 482, 487 (1958)
(stating that in order to justify reversible error, a court’s ruling must not only be
erroneous, but also “material and prejudicial” so that a “different result would likely
have ensued” but for the error).
VII. Conclusion
¶ 52 We hold the trial court did not err in basing its entry of the Level 3 disposition
solely on K.N.H.’s violation of terms and conditions related to electronic monitoring,
for which the juvenile received only oral notice from his court counselor.
Furthermore, we hold the trial court erred in failing to follow the statutory mandate
of orally stating the precise duration of the disposition at the time of commitment;
however, the juvenile has failed to show that he was prejudiced by the error. For the
foregoing reasons, we affirm the Order on Motion for Review and the Disposition and
Commitment Order.
AFFIRMED. IN RE: K.N.H.
Judges Zachary and Murphy concur.