Mosser, Matter of
| Decision Date | 17 July 1990 |
| Docket Number | No. 8913DC1248,8913DC1248 |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of Johnathan Murry MOSSER. |
Lacy H. Thornburg, Atty. Gen. by Debra K. Gilchrist, Asst. Atty. Gen., Fayette, for the State.
Fred C. Meekins, Jr., Whiteville, for juvenile-appellant.
Johnathan Mosser (juvenile) appeals the trial judge's disposition and order committing juvenile to confinement for thirty days with the Division of Youth Services.
The record reveals that in May, 1989, juvenile was a thirteen-year-old male who resided at the Lake Waccamaw Boys and Girls Home of North Carolina ("Home"). A juvenile petition dated 30 May 1989 alleged that the juvenile, along with two other juveniles, did "unlawfully and willfully ... ass[au]lt and strike Johnathan Lamont Garner by slapping in the face with his hands, hitting him with a belt on his back and buttocks, forcing him to drink water with cigarette tobacco in it and shoving his head into a commode filled with urine." The juvenile admitted to striking Johnathan Lamont Garner with his hand and a belt and did not deny that he took part in the other actions. Based on the juvenile's admissions, the trial court adjudicated him a delinquent juvenile on 21 June 1989.
At the dispositional hearing, the following evidence was presented to the trial court: the juvenile was placed on probation in Wake County on 8 August 1988 for a period of nine months for breaking and entering, to be terminated in May 1989; the juvenile was voluntarily admitted by his mother to the Home in August 1988, and that other than the assault on Garner, juvenile had committed no substantial rule violations; the juvenile had been diagnosed as "manic-depressive" and was being treated with the drug lithium; juvenile was an admitted adolescent alcoholic, had been "doing drugs and alcohol for some length of time" and was being treated by the Columbus County Mental Health Clinic and was attending Alcoholic Anonymous meetings. The juvenile intake counselor opined that the juvenile could benefit from remaining at Boys Home and being placed on supervised probation. The substance abuse counselor at the Columbus County Mental Health Clinic, who had a bachelor's degree in social work, expressed the opinion that "it would be more beneficial [for the juvenile to be placed on] probation and continue him on with the meetings and the therapy [offered by the mental health clinic]." The juvenile's mother indicated that her son had improved since being placed in the home and that she "would like to see him stay at least another year." The juvenile court counselor informed the court that the local police department had informed her that they "would be willing to use [the juvenile] ... at the Police Department ... like in a community service program to give [him] a chance to spend some time [with officers at the police department.]" The social worker for the Home recommended to the court that the juvenile be placed on probation and that as a condition of probation that the juvenile remain at the Home for another period of time.
The trial court ordered that the juvenile be committed to the Division of Youth Services for a period of thirty days and included in its order the following pertinent findings of fact and conclusions of law:
After considering the evidence, the Court finds:
The Court adopts and incorporates herein the Findings of Fact as set out in the Juvenile Adjudication Order.
1. That the Juvenile, JOHNATHAN MURRY MOSSER, has been diagnosed as manic depressive and is currently being treated by the resident Psychiatrist at the Columbus County Mental Health Center, and is taking the drug Lithiu[m], to treat illness.
2. That the Juvenile is presently being counseled by ROBERT HORST of the Columbus County Mental Health Center.
3. That the Juvenile participated with two other Juveniles, to-wit: SANDY LEE COLEMAN and ERIC JACKSON RANDALL in additional acts of violence against JOHNATHAN LAMONT GARNER, by acting in concert and aiding and abetting SANDY COLEMAN in forcing LAMONT GARNER to drink water which contained cigarette tobacco and shoving his head into a commode filled with urine.
4. That the assault and other acts took place while all of the Juveniles, including the victim, were residents of the Boys & Girls Home of North Carolina, and said incidents took place during the night time and early morning hours over a three hour period in the bathroom of one of the cottages located at the Boys Home. The Court further finds that at the time of the incident, the Juveniles were not properly supervised.
5. Due to the nature of the allegations involved and other findings set forth herein, the Court finds as a fact that ... community based resources as alternative dispositions are inappropriate for the Juvenile.
6. That the Court finds that the best interest of the Juvenile would be served if he were committed to the Department of Human Resources, Division of Youth Services, for a period of thirty days.
The Court further finds that the juvenile meets each of the following criteri[um] for commitment to the Division of Youth Services, Department of Human Resources, specifically that:
(1) The juvenile is delinquent and is ten years of age or older;
(2) The juvenile has not or would not adjust in his own home on probation or while other services are being provided;
(3) Community residential care has already been utilized or would not be successful or is not available;
(4) The juvenile's behavior constitutes some threat to persons or property in the community;
(5) The alternatives to commitment as contained in G.S. 7A-649 have been attempted unsuccessfully or are inappropriate.
The Court concludes as a Matter of Law:
1. That it would be in the best interest of the Juvenile, JOHNATHAN MURRY MOSSER, that he be committed to the Department of Human Resources, Division of Youth Services, for a period of thirty (30) days, to be served in a local confinement facility.
2. That during the period of his confinement, the Juvenile shall be given access to Mr. Robert Horst of the Columbus County Mental Health Center for counseling sessions.
After the dispositional order was entered, the juvenile's attorney informed the court that commitment of the juvenile to the Division of Youth Services would make it impossible for the juvenile to continue counseling by the Columbus County Mental Health Clinic, since the child would be committed to an institution approximately 300 miles from Columbus County. The juvenile's attorney also notified the court that the juvenile was scheduled to begin summer school and that commitment to the Division of Youth Services would prevent completion of his summer school requirements, thus requiring the juvenile to repeat his grade. The court denied...
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In re S.M.
..." 263 N.C. App. at 480, 823 S.E. 2d at 677 (quoting N.C. Gen. Stat. § 7B-2502(c) ) (emphasis added); see In re Mosser , 99 N.C. App. 523, 528, 393 S.E.2d 308, 311 (1990) (holding that a statement from the juvenile's mother that he was "manicdepressive" was sufficient evidence of mental illn......
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In re E.M.
...matter anew and freely substitutes its own judgment for that of the lower tribunal." Id. at 516, 750 S.E.2d at 551.In In re Mosser , 99 N.C. App. 523, 393 S.E.2d 308 (1990), a juvenile was committed to confinement despite evidence presented to the trial court that he was mentally ill. At th......
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In the Matter of L.S., No. COA06-733 (N.C. App. 2/6/2007)
... ... L.S. appeals ... In his sole argument on appeal, L.S. contends that the trial court erred in ordering him to a youth development center when community based alternatives were not exhausted. L.S. cites In re Mosser, 99 N.C. App. 523, 527-28, 393 S.E.2d 308, 311 (1990), in support of his contention. In re Mosser, however, was decided under the former section 7A-646 which has since been amended. Juvenile dispositions in delinquency proceedings are now controlled by N.C. Gen. Stat. § 7B-2500 et seq., which no ... ...