In re D.E.P.

• Decision Date: 07 February 2017
• Docket Number: No. COA16-838,COA16-838
• Court: North Carolina Court of Appeals
• Parties: In the MATTER OF: D.E.P.

251 N.C.App. 752

796 S.E.2d 509

In the MATTER OF: D.E.P.

No. COA16-838

Court of Appeals of North Carolina.

Filed: February 7, 2017

Blass Law, PLLC, by Danielle Blass, for juvenile-appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennie Wilhelm Hauser, for the State.

ZACHARY, Judge.

The juvenile-appellant, Daniel,¹ appeals from a disposition order that committed him to the Department of Juvenile Justice for placement in a training school for a minimum of six months and a maximum not to exceed his eighteenth birthday. On appeal Daniel argues that the trial court erred in its disposition order by failing to enter findings that reflected its consideration of the factors set out in N.C. Gen. Stat. § 7B–2501(c), and abused its discretion by entering a Level 3 disposition committing him to training school. For the reasons that follow, we disagree.

I. Factual and Procedural Background

Daniel was born in 1999 and grew up in Charlotte, North Carolina. On 22 December 2014, the Mecklenburg County Department of Juvenile Justice filed petitions alleging that Daniel was a delinquent juvenile in that he had committed the misdemeanor offenses of communicating a threat, second-degree trespass, simple assault, and assault on a government official. On 20 February 2015, a petition was filed alleging that Daniel was guilty of simple possession of less than a half ounce of marijuana. On 6 March and 31 March 2015, petitions were filed alleging that Daniel had committed the offense of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. Daniel's father and older brother were identified in the petition as Daniel's co-conspirators.

In connection with the juvenile petitions, a juvenile court counselor filed a report for the trial court's use. This report described Daniel's attitude towards authority figures as "very rude and disrespectful" and stated that Daniel's mother was unable to effectively discipline Daniel. At school, Daniel had a "history of suspensions for aggressive behaviors, being disruptive, insubordinate, and fighting" and had admitted to skipping school on occasion. Daniel had been diagnosed with Type 2 diabetes

for which he took insulin, as well as ADHD (attention deficit hyperactivity disorder ) and ODD (oppositional defiant disorder ), for which he was prescribed a psychoactive medication.

On 15 July 2015, a hearing was conducted on the juvenile petitions filed in this case. Daniel admitted that he had committed the offense of robbery with a dangerous weapon, and the State dismissed the other petitions. On 23 July 2015, the trial court entered an order that adjudicated Daniel to be a delinquent juvenile and imposed a Level 2 disposition, pursuant to N.C. Gen. Stat. § 7B–2508 (2015). Daniel was placed on juvenile probation for a period of 12 months and was required to comply with a 6:00 p.m. curfew, attend school regularly, and not violate any laws or possess any controlled substances.

On 1 September 2015, juvenile petitions were filed alleging that on 27 July 2015, just four days after being placed on probation, Daniel committed the offenses of resisting, delaying, or obstructing a law enforcement officer (when he jumped from a stolen vehicle), and possession of less than a half ounce of marijuana. Daniel's court counselor filed a motion for review alleging that Daniel had violated the terms of his juvenile probation by committing the offenses alleged in the petitions, by failing to adhere to the court-imposed curfew, and by being suspended from school for ten days. At a hearing conducted on 21 October 2015, Daniel admitted to possession of marijuana and the State dismissed the petition alleging that Daniel had resisted an officer. The trial court entered an order that continued Daniel on juvenile probation. On 8 January 2016, Daniel's court counselor filed a motion for review, alleging that Daniel had violated probation by failing to abide by his curfew and by being suspended from school for ten days. Another motion for review was filed on 2 February 2016, alleging that Daniel had violated his probation by leaving the home of his grandmother, with whom he had been directed to reside.

On 1 March 2016, the trial court conducted a hearing on the motions for review, at which Daniel admitted to violating the terms of his probation. The trial court continued the disposition until 11 April 2016, and entered an order that stated in relevant part that "[i]f [Daniel] does what he needs to do then he will remain at a Level 2 disposition[;] if not he will be committed to training school." On 30 March 2016, a motion for review was filed, alleging that Daniel had violated probation by skipping school and being suspended from school. Following a dispositional hearing, the trial court entered an order on 25 April 2016, imposing a Level 3 disposition and committing Daniel to training school for a period of at least six months until no later than his 18th birthday. Daniel has appealed to this Court from this order.

II. Standard of Review

On appeal, Daniel does not dispute the validity of his adjudication as a delinquent juvenile or dispute the fact that he violated the terms of his probation. Nor does Daniel challenge the trial court's statutory authority pursuant to N.C. Gen. Stat. § 7B–2510(e) (2015) to impose a Level 3 disposition committing him to training school upon Daniel's admission to violating his probation. Daniel argues instead that the trial court failed to comply with the statutory requirements for entry of a dispositional order and that the trial court's choice of disposition constituted an abuse of the court's discretion. Accordingly, we first review the standards to which a trial court must adhere in fashioning an appropriate disposition for a delinquent juvenile.

N.C. Gen. Stat. § 7B–2500 (2015) provides that:

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. The court should develop a disposition in each case that:

(1) Promotes public safety;

(2) Emphasizes accountability and responsibility of both the parent, guardian, or custodian and the juvenile for the juvenile's conduct; and

(3) Provides the appropriate consequences, treatment, training, and rehabilitation to assist the juvenile toward becoming a nonoffending, responsible, and productive member of the community.

The three levels of disposition for a delinquent juvenile are set out in N.C. Gen. Stat. § 7B–2508, which correlates the permissible disposition level to the offense for which the juvenile is being adjudicated delinquent and his prior history of juvenile adjudications. Daniel was initially given a Level 2-Intermediate disposition. Upon his repeated violation of the terms of probation, the trial court was authorized under N.C. Gen. Stat. § 7B–2510(e) to "order a new disposition at the next higher level on the disposition chart[,]" in this case a disposition under Level 3-Commitment. Daniel does not dispute that the disposition in the present case represented a legally valid choice under the relevant statutes.

The standard of review in such cases is well established: "In instances involving permissive statutory language, such as the language contained in N.C. Gen. Stat. § 7B–2510(e), the validity of the trial court's actual dispositional decision is reviewed on appeal using an abuse of discretion standard of review." In re Z.T.W ., 238 N.C.App. 365, 370, 767 S.E.2d 660, 664–65 (2014) (citation omitted). "[A]n abuse of discretion is established only upon a showing that a court's actions are manifestly unsupported by reason, or so arbitrary that [they] could not have been the result of a reasoned decision." In re E.S ., 191 N.C.App. 568, 573, 663 S.E.2d 475, 478 (2008) (internal quotation marks and citation omitted). "[A] trial court's dispositional decision should be upheld on appeal unless the decision in question could not have been a reasoned one." Z.T.W ., 238 N.C.App. at 370, 767 S.E.2d at 665.

III. Sufficiency of Findings of Fact in the Dispositional Order

Daniel argues first that the trial court erred by failing to include appropriate findings of fact in the dispositional order. N.C. Gen. Stat. § 7B–2501(c) (2015) provides that, in "choosing among statutorily permissible dispositions," 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" and that the trial court's selection should be 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 as indicated by a risk and needs assessment.

N.C. Gen. Stat. § 7B–2512 (2015) provides in relevant part that the "dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law." On appeal, Daniel asserts that in order for a trial court's findings in a disposition order to constitute the "appropriate" findings of fact required by N.C. Gen. Stat. § 7B–2512, these findings must reference the specific factors listed in N.C. Gen. Stat. § 7B–2501(c) and must document the trial court's consideration of each of these factors. On the other hand, the State argues on appeal that "neither statute requires the trial court to make written findings of fact for each of the five considerations under [N.C. Gen. Stat. §] 7B–2501(c)." After careful review, we agree with the State.

The position taken by Daniel on appeal is based upon the discussion in some of our prior cases concerning the holding of In re Ferrell , 162 N.C.App. 175, 589 S.E.2d 894 (2004). However, upon thorough examination, it is apparent that the standard posited rests...