Opinion
No. COA09-1565
Filed 6 July 2010 This case not for publication
Appeal by juvenile from order entered 22 July 2009 by Judge Carol Jones Wilson in Sampson County District Court. Heard in the Court of Appeals 14 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Jennifer M. Jones, for the State. Mary McCullers Reece, for juvenile-appellant.
Sampson County No. 08 JB 78.
Where the trial court's Level 3 disposition order failed to contain findings of fact required by N.C. Gen. Stat. § 7B-2512 and 7B-2501, the order must be reversed and remanded for a new disposition hearing.
I. Factual and Procedural Background
On 17 July 2008, the Sampson County Sheriff's Office filed delinquency petitions alleging that Z.D.A. (juvenile) had committed felonious breaking or entering, felonious larceny pursuant to felonious breaking or entering, felonious possession of stolen goods, and three counts of felony conspiracy. On 17 September 2008, juvenile admitted to breaking and entering, larceny, and possession of stolen goods, and the State dismissed the remaining charges. In the disposition order, the trial court placed juvenile on 12 months probation, and ordered juvenile to pay $1,000.00 restitution, serve 14 days in intermittent confinement, and perform 75 hours of community service. The conditions of probation also required juvenile to maintain passing grades in at least four courses, not use any drugs or alcohol, submit to random drug testing, and remain on good behavior and not violate any laws.
On 22 January 2009, a court counselor filed a motion for review alleging that juvenile had violated the conditions of his probation. The motion alleged that juvenile was suspended from school in October 2008, failed to maintain at least four passing grades, and was terminated from the restitution program on 10 January 2009 due to an unexcused absence from work. In an adjudication order entered 20 February 2009, juvenile admitted to the probation violations. In the disposition order, the trial court ordered juvenile be subject to intermittent confinement, not affiliate with any gangs, complete 65 hours of community service, and be placed in a wilderness program. The trial court also ordered juvenile to return to court for a review of follow-up reports from teachers.
Juvenile and his parents failed to appear in court on 18 March 2009, 15 April 2009, 13 May 2009, and 10 June 2009. On 9 June 2009, the court counselor filed a second motion for review alleging additional probation violations. The motion alleged that juvenile tested positive for marijuana on 27 May 2009, failed to maintain at least four passing grades, failed to regularly attend school in February, March, and April 2009, received numerous suspensions from school, moved without notifying the court counselor of his new home, and had a $650.00 balance due on his restitution.
The case came on for a review hearing on 22 July 2009. Juvenile admitted that he had failed to pay restitution, but denied the willfulness of that violation, and also denied the remaining alleged violations. The court counselor, who was responsible for supervising juvenile while he was on probation, testified concerning the alleged violations, including juvenile's positive drug test, multiple suspensions, failure to maintain passing grades, removal from the restitution program because of unexcused work absences, and restitution balance. In his testimony, juvenile acknowledged that he was dismissed from the restitution program because of an unexcused absence.
The trial court found juvenile to be in willful violation of his probation for his failure to maintain four passing grades, attend school, make restitution, and maintain contact with the court counselor. The trial court ordered a Level 3 disposition, and ordered juvenile be committed to a youth development center for a minimum of six months, and thereafter an indefinite commitment. On 31 July 2009, juvenile entered written notice of appeal.
II. Level 3 Disposition — Required Findings of Fact
In his sole argument, juvenile contends that the trial court's disposition order is inadequate because the trial court failed to make any findings of fact addressing the factors enumerated in N.C. Gen. Stat. § 7B-2501(c) (2009). The State concedes that the trial court made insufficient findings to support its order, and we agree.
Upon a finding of a probation violation in a juvenile delinquency case, the trial court may:
continue the original conditions of probation, modify the conditions of probation, or, except as provided in subsection (f) of this section, order a new disposition at the next higher level on the disposition chart in [N.C. Gen. Stat. § ] 7B-2508. In the court's discretion, part of the new disposition may include an order of confinement in a secure juvenile detention facility for up to twice the term authorized by [N.C. Gen. Stat. § ] 7B-2508.
N.C. Gen. Stat. § 7B-2510(e) (2009) (emphasis added).
We have previously held that juvenile probation revocation proceedings are dispositional, and subject to the statutory provisions governing juvenile delinquency dispositions. See In re D.J.M., 181 N.C. App. 126, 130-31, 638 S.E.2d 610, 613 (2007); In re O'Neal, 160 N.C. App. 409, 412-13, 585 S.E.2d 478, 481, disc. review denied, 357 N.C. 657, 590 S.E.2d 270 (2003).
"The dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law." N.C. Gen. Stat. § 7B-2512 (2009). The 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 on the following factors:
(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) (2009).
Here, the trial court's disposition and commitment order does not contain findings related to any of the factors enumerated in N.C. Gen. Stat. § 7B-2501(c). In the pre-printed findings section of the disposition order, the trial court made findings describing juvenile's prior level 2 disposition, placement on probation, and violation of probation. The trial court made an additional finding, by checking a box on the form, that "[t]he juvenile has been adjudicated for a violent or serious offense and Level III is authorized by [N.C. Gen. Stat. § ] 7B-2508."
The form contains no further findings of fact, including in an area designated with the prompt:
Other Findings: (Continue on attached pages if necessary. State any findings regarding the seriousness of the offense(s); the need to hold the juvenile accountable; the importance of protecting the public; the degree of the juvenile's culpability; the juvenile's rehabilitative and treatment needs; and available and appropriate resources.)
Finally, we also note that the trial court's adjudication order contains no other findings that could remedy the shortcomings of the disposition order.
In sum, the trial court's order contains insufficient findings as required by N.C. Gen. Stat. § 7B-2512 to enable this Court to conduct meaningful review of whether the trial court considered the factors required by N.C. Gen. Stat. § 7B-2501(c). We reverse the trial court's disposition order and remand the matter for a new disposition hearing.
REVERSED AND REMANDED.
Judges HUNTER, Robert C. and BRYANT concur.
Reported per Rule 30(e).