Opinion
COA23-271
03-19-2024
IN THE MATTER OF: M.G.W.
Attorney General Joshua H. Stein, by Assistant Attorney General Sarah G. Zambon, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 22 August 2023.
Appeal by juvenile-appellant from order entered 8 September 2022 by Judge Chris Rogerson in District Court, Wayne County, No. 21JB13
Attorney General Joshua H. Stein, by Assistant Attorney General Sarah G. Zambon, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for juvenile-appellant.
OPINION
STROUD, JUDGE.
Juvenile-appellant appeals from a disposition order entering a Level 3 disposition and committing him to a youth development center for an indefinite time. Since the trial court's disposition order did not make findings of fact as required by North Carolina General Statute Section 7B-2501(c), we vacate and remand for the trial court to make additional findings of fact.
I. Background
Michael, who was 15 years old at the time, admitted to the felony offense of fleeing to elude arrest on 3 June 2021, and the trial court entered a Level 2 disposition. Michael was placed on probation for a period of 12 months, and was ordered to cooperate with a "community based program[:] Structured Day Program if applicable or any community based programs recommended by the Court Counselor[;]" to complete 30 hours of community service; to abide by a 7:00 p.m. to 6:00 a.m. curfew for 90 days; not to be in "any places deemed inappropriate by [Michael's] parent(s) or [his] Court Couselor[;]" to be subject to intermittent confinement under certain circumstances; and to "be placed in a multipurpose group home[.]"
A pseudonym is used for the minor child.
On 4 May 2022, Michael's juvenile court counselor filed a "Motion for Review" alleging between 24 February 2022 and 3 May 2022, Michael violated his probation by: (1) violating his curfew by "leaving home with[ ] whereabouts unknown from" 24 February 2022 to 3 May 2022; (2) "[n]ot cooperating . . . b[y] leaving the home and program on and not returning[;]" (3) "[n]ot attending school by being unlawfully absent" from 24 February 2022 to 3 May 2022; and (4) "[n]ot cooperating with Mental Health Services specifically Waynesboro Family Clinic."
Following an extensive hearing on 8 September 2022, the trial court entered a Level 3 disposition that same day and committed Michael to the youth detention center for an indefinite time. While the disposition order included a finding that a predisposition report, risk assessment, and needs assessment was received, considered, and incorporated by reference, the trial court did not make any other written findings. Michael's mother filed written notice of appeal on 20 September 2022.
Under North Carolina General Statute Section 7B-2604, a juvenile's mother, in a juvenile delinquency case, is a "proper part[y] for appeal." See N.C. Gen. Stat. § 7B-2604(a) (2021).
II. Petition for Writ of Certiorari
Michael concedes that his notice of appeal is untimely. However, Michael filed a petition for writ of certiorari ("PWC") with this Court on 27 April 2023. For the reasons set forth below, in our discretion, we grant Michael's PWC and address the merits of his appeal.
The disposition order from the trial court was entered 8 September 2022. The record is clear Michael's notice of appeal was untimely. As Michael's PWC states, "Michael did not enter oral notice of appeal in open court." Further, while "Michael's mother signed a written notice of appeal on 16 September 2022," she did not file the notice of appeal with the trial court until 20 September 2022, which is longer than the 10 days allowed for notice of appeal under North Carolina General Statute Section 7B-2602. See N.C. G.S. § 7B-2602 (2021) ("Notice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order."). Thus, as Michael did not give oral notice of appeal in open court and filed his written notice of appeal after 10 days from the entry of the order, his appeal is untimely.
Generally, this Court is without jurisdiction to hear an untimely notice of appeal. See In re J.C.B., 233 N.C.App. 641, 645, 757 S.E.2d 487, 490 (2014) ("An appellant's failure to give timely notice of appeal is jurisdictional, and an untimely attempt to appeal must be dismissed." (citation and quotation marks omitted)). However, a "writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C. R. App. P. 21(a)(1). "This Court has held that an appropriate circumstance to issue writ of certiorari occurs when an appeal has been lost because of a failure of his or her trial counsel to give proper notice of appeal." In re J.C.B., 233 N.C.App. at 645, 757 S.E.2d at 490.
Here, Michael's attorney was not the reason his notice was not timely filed; instead, Michael's mother signed the written notice of appeal on 16 September 2022, which would have been timely if it were filed at that time, but it was filed after the 10-day deadline. Further, the State responded to Michael's PWC but did not indicate it would be prejudiced if this Court hears the appeal, simply stating "the State of North Carolina respectfully submits that it is within this Court's discretion whether to allow [Michael's] petition for writ of certiorari." As we have previously issued a writ of certiorari due to errors of an attorney, and the State would not be prejudiced, we grant Michael's PWC and will proceed to the merits of his appeal. See id.
III. North Carolina General Statute Section 7B-2501(c)
Michael presents one substantive issue on appeal, arguing "[t]he trial court committed reversible error by failing to make sufficient findings in its 8 September 2022 disposition order to demonstrate that it considered the factors listed in N.C. G.S. § 7B-2501(c)." The State concedes the trial court failed to make sufficient findings, stating "the State concedes that the dispositional order must be remanded back to the trial court for the statutorily required findings of fact." While the State requests we uphold the dispositional order "but remand . . . back to the trial court to make findings of fact[,]" Michael contends this Court should "reverse or vacate th[e dispositional] order and remand for a new disposition hearing[,]" or "[i]n the alternative, and at a minimum, . . . should remand for additional findings of fact[.]" Nonetheless, we will still review whether the trial court failed to make appropriate findings and, if so, what the proper remedy should be.
A. Standard of Review
"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." In re K.M., 276 N.C.App. 2, 5, 854 S.E.2d 453, 456 (2021) (citation omitted). Further, "[u]nder the de novo standard, the Court considers the matter anew and freely substitutes its own judgment for that of the lower court." Id.
B. Findings of Fact Under North Carolina General Statute Section 7B-2501
North Carolina General Statute Section 7B-2501(c) states:
In choosing among statutorily permissible dispositions, the court shall select the most appropriate disposition both in terms of kind and duration for the delinquent juvenile. Within the guidelines set forth in G.S. 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).
This Court has recently addressed this issue in two similar opinions. First, in In re N.M., this Court vacated a disposition order where
the trial court received into evidence a predisposition report, risk assessment, and needs assessment from the juvenile court counselor as well as a Youth Assessment and Screening Instrument (YASI) full narrative assessment which contained much information from which the trial court could have made the necessary findings required by N.C. Gen. Stat. § 7B-2501(c). However, the trial court did not make any written finding regarding the five factors as required.In re N.M., __ N.C.App. __, 892 S.E.2d 643, 645 (2023) (emphasis added).
Nearly identical to In re N.M., this Court in In re V.M. reversed a disposition order since
the trial court's dispositional order does not contain findings addressing the N.C. G.S. § 7B-2501(c) factors. In the pre-printed portions of the dispositional order, the trial court found that the juvenile had previously been given a Level 2 disposition on 15 January 2010, had been placed on probation, and had violated the terms of his probation. As we indicated above, the trial court checked boxes indicating that it had received, considered, and incorporated by reference the predisposition report, risk assessment, and needs assessment, and that "[t]he juvenile has been adjudicated for a violent or serious offense and Level III is authorized by G.S. 7B-2508."
The trial court's order contains no additional findings of fact, including in the area designated as "Other Findings[.]"In re V.M., 211 N.C.App. 389, 392, 712 S.E.2d 213, 215 (2011).
This case is nearly identical to N.M. and V.M. since the trial court here also checked the boxes that it received, considered, and incorporated by reference a predisposition report, risk assessment, and needs assessment. Compare In re N.M., __ N.C.App. __, 892 S.E.2d at 645; In re V.M., 211 N.C.App. at 392, 712 S.E.2d at 215. The trial court also checked the box that "[t]he juvenile has been adjudicated for a violent or serious offense and Level 3 is authorized by G.S. 7B-2508." However, the trial court did not make any additional written findings, including in the space provided for "Other Findings[.]" As this Court has consistently held only incorporating prior reports by reference, without making any additional findings of fact as required by North Carolina General Statute Section 7B-2501(c), is error, we must vacate and remand this matter for additional findings of fact. See In re N.M., __ N.C.App. __, 892 S.E.2d at 645; In re V.M., 211 N.C.App. at 392, 712 S.E.2d at 215.
While Michael requests this Court remand this matter for a new disposition hearing, which was the remedy in N.M. and V.M., see In re N.M., __ N.C.App. __, 892 S.E.2d at 645; In re V.M., 211 N.C.App. at 392, 712 S.E.2d at 215, we will neither require nor prohibit a new disposition hearing. We recognize circumstances such as Michael's rehabilitative and treatment needs may have changed since the original disposition hearing. We therefore remand for the trial court to enter a new disposition order with additional findings of fact, and on remand the trial court has the discretion to hold a new disposition hearing. See In re J.A.D., 283 N.C.App. 8, 25, 872 S.E.2d 374, 387 (2022) ("The trial court is permitted on remand to hold a new dispositional hearing to hear additional evidence as needed to appropriately consider the five N.C. Gen. Stat. § 7B-2501(c) factors.").
IV. Conclusion
As the trial court failed to make sufficient written findings of fact as required by North Carolina General Statute Section 7B-2501(c), we vacate and remand this matter to the trial court for entry of a new order with additional findings of fact.
VACATED AND REMANDED.
Judges FLOOD and STADING concur.
Report per Rule 30(e).