In re G.C.

• Decision Date: 19 November 2013
• Docket Number: No. COA13–152.,COA13–152.
• Parties: In the Matter of G.C.
• Court: North Carolina Court of Appeals

750 S.E.2d 548

In the Matter of G.C.

No. COA13–152.

Court of Appeals of North Carolina.

Nov. 19, 2013.

Appeal by Juvenile G.C. from a disposition and commitment order entered on 17 September 2012 by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 12 September 2013.

Attorney General Roy Cooper, by Special Deputy Attorney General Gerald K. Robbins, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt, for Juvenile–Appellant.

HUNTER, JR., ROBERT N., Judge.

Appellant G.C. (“Henry”),¹ age thirteen, was adjudicated a delinquent on 17 September 2012. Henry appealed the adjudication order on 5 October 2012. Subsequently, Henry filed a petition for a writ of certiorari with this Court seeking review of a later 10 April 2013 order denying Henry release pending his initial appeal. After careful review, this Court affirms the decision of the trial court adjudicating Henry delinquent. We vacate the order denying Henry release pending appeal and remand this matter to the trial court for further proceedings.

I. Facts & Procedural History

On 26 January 2012, a Cumberland County Juvenile Court Counselor filed juvenile petitions regarding Henry. The petitions alleged Henry was delinquent as a result of committing two counts of first-degree sexual offense under N.C. Gen.Stat. § 14–27.4(a)(2) (2011) and two counts of indecent liberties between children under N.C. Gen.Stat. § 14–202.2 (2011). The petitions alleged that the offenses occurred between 1 January 2009 and 7 March 2010. Henry appeared in Cumberland County District Court for his first appearance on 2 February 2012. Counsel was assigned to Henry and an order was entered to conduct a probable cause hearing on 22 March 2012. On March 22nd, 23rd, and 29th, Cumberland County District Court Judge John W. Dickson held a probable cause hearing relating to the petitions. The testimony presented tended to show the following facts.

In 2010 Henry, then 13 years old, lived in Fayetteville with his mother (“Mary”), stepfather (“John”), older sister (“Anne”), and younger brother (“Gary”). M.S. (“Linda”), then 6 years old, lived across the street from Henry. Linda testified that she often visited Henry's home to play with Anne and Gary, that she was “best friends” with Gary, and that she considered Anne to be like an older sister. Linda stated that she sometimes played videogames with Henry and Gary in an upstairs bedroom or “bonus room” shared by the brothers.

Linda stated in court that she was touched sexually by Henry “multiple times,” specifically stating that Henry touched her “private parts” and that Henry touched her vagina with his hands and placed his penis on the exterior of her vagina. Linda testified that the sexual contacts between the two of them began when she was in first grade. Linda also did not tell anyone about Henry's actions until “when I got sick and tired of it, I told his mother and I told his father.”

John testified that on 7 March 2010, he was talking with Linda about a “Japanese garden” Linda wanted in her family's back yard. While they were talking, John testified that Linda began scratching her privates, that he asked her to stop, and that he told Linda touching her privates was inappropriate behavior. Linda continued the conversation, and John testified that Linda then said that Henry needed to cut his fingernails, because Henry scratched her private areas. John then asked his wife Mary to speak with Linda, and John told his wife Mary immediately about Linda's statement. Mary took Linda aside to talk with her, and then Mary brought Linda home to Linda's mother (“Gail”). Mary told Gail about Linda's statements, and on 8 March 2010 Gail filed a report about these events with the Fayetteville Police Department.

Detective Steve Carr (“Detective Carr”), a member of the youth services unit of the Fayetteville Police Department, responded to the report shortly thereafter. Detective Carr arranged for a doctor's examination and a clinical interview at the Child Advocacy Center. On 11 March 2010, Janette Rogers (“Ms. Rogers”), a forensic interviewer, interviewed Linda; she did so again on 29 March 2010. During the first interview, Linda told Ms. Rogers that Henry touched her privates, that he stuck his fingernails in her privates, and that the sexual contacts occurred “about twenty or thirty times.” Ms. Rogers also testified that typically a second interview doesn't take place unless there are new allegations raised or the need for multiple sessions due to a large volume of information. Ms. Rogers testified that Detective Carr requested the second interview because new allegations may have arisen. During the second interview with Ms. Rogers, Linda stated that Henry's penis touched her vagina.

Later, Linda was given a comprehensive medical examination by Dr. Howard Laughlin (“Dr. Laughlin”), a pediatrician at the Southern Regional Area Health Education Center in Fayetteville, at the request of Detective Carr. Dr. Laughlin testified that when he asked Linda if there was anything she was concerned about, she discussed Henry putting his hands in her pants and noted that it had happened over twelve times. Dr. Laughlin also said Linda stated “[t]hat all of the occasions had been essentially the same, with the exception of one time she told me about, after she'd gotten back from Minnesota, that [Henry] had laid on top of her and had kissed her on the mouth.” After discussing an anatomy diagram with Linda, Dr. Laughlin testified that Linda said she felt Henry's penis touching her privates through her clothes. Dr. Laughlin also performed a physical exam on Linda, noting no anal or vaginal injuries to Linda. Dr. Laughlin stated that he believed Linda exhibited characteristics consistent with those of a sexually abused child. Based on his observations, Dr. Laughlin recommended that Linda see a counselor to help Linda resolve her issues and to help her “feel safe.” Dr. Laughlin also recommended that Mary not allow Linda to have any further contact with Henry.

Thereafter Linda began to see Judith Rose (“Ms. Rose”), a licensed clinical social worker and psychotherapist. Ms. Rose began treating Linda for post-traumatic stress disorder and possible sexual abuse. Ms. Rose treated Linda for over a year, and during treatment sessions, Linda identified Henry as a person who sexually abused her. Specifically, Ms. Rose testified that Linda told her about how “sharp his fingernails were, and that they scraped the inside of her vagina when they went inside of her, and that she felt that he needed his fingernails cut. Beyond that, we didn't go into very specific details of the abuse[.]” Ms. Rose stated that she did not “go into details” with Linda because she knew the case would be heard in court and did not want “to be seen as influencing testimony or leading the patient in any way, so [she] mainly just focused on symptoms specifically, and how to deal with those.”

Henry did not testify during the proceedings. The record also does not show medical evidence of penetration. After hearing the evidence, the trial court entered a 16 April 2012 Juvenile Order finding probable cause to believe Henry had committed first degree sexual offense. Judge Dickson also issued a Juvenile Adjudication Order, adjudicating Henry delinquent for violating N.C. Gen.Stat. § 14–202.2 (2011), concerning indecent liberties between children.

On 17 September 2012, a transfer hearing was conducted pursuant to N.C. Gen.Stat. § 7B–2203 (2011) to determine whether the case should be removed to superior court. The district court denied the motion and retained jurisdiction in the case. Immediately upon the conclusion of the transfer hearing, the district court stated:

[The] Court previously having heard evidence, found probable cause to believe these offenses were committed, further finds beyond a reasonable doubt that they were committed and that the juvenile was guilty of the charges and is a delinquent juvenile as defined by statute.

The court then immediately began its disposition proceeding:

The juvenile, having no prior delinquency points due to the nature of the offense, Level II or III may be imposed. Both charges are to be consolidated for one judgment. The Court finds that it is in the best interest of both the juvenile and people of this state that a Level III be imposed. He is ordered placed in the custody of the Youth Development Center for a period of not less than six months, nor greater than his 21st birthday. He is to receive all treatment recommended. Ms. Cottle's report is to accompany him to YDC so that YDC may follow the recommendations that she has made.

II. Jurisdiction & Standard of Review

There are three issues on appeal. First, Henry requests the issuance of a writ of certiorari for the purpose of attaining a determination concerning whether the trial court erred by declining to release Henry during the appellate process. Second, Henry argues the trial court erred by imposing a Level III disposition without making the necessary findings of fact to support that disposition. Third, Henry argues the trial court erred by adjudicating Henry responsible for the charges against him and sentencing Henry to a youth development center without first holding a separate adjudicatory and dispositional hearing.

While this appeal was pending, Henry filed a petition for writ of certiorari asking this Court to address an issue not presented in his brief. Rule 21(a)(1) of our Rules of Appellate Procedure provides that “[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.”

The two issues addressed in Henry's brief are reviewed de novo. Under N.C. Gen.Stat. § 7B–2602 (2011), a juvenile is entitled to appeal a final order of a...