Walker, In re

• Decision Date: 11 October 1972
• Docket Number: No. 26,26
• Citation: 191 S.E.2d 702,282 N.C. 28
• Court: North Carolina Supreme Court
• Parties: In the Matter of Valerie Lenise WALKER.

Page 702

191 S.E.2d 702

282 N.C. 28

In the Matter of Valerie Lenise WALKER.

No. 26.

Supreme Court of North Carolina.

Oct. 11, 1972.

Wallace C. Harrelson, Public Defender, and J. Dale Shepherd, Asst. Public Defender, for respondent appellant.

Robert Morgan, Atty. Gen., and R. S. Weathers, Asst. Atty. Gen., for State of North Carolina, appellee.

Norman B. Smith, of Smith, Patterson, Follin & Curtis, Greensboro, for respondent appellant's amicus curiae, North Carolina Civil Liberties Union Legal Foundation, Inc.

HUSKINS, Justice:

Appellant Valerie Walker contends that she had a constitutional right to counsel at the hearing on the initial petition alleging her to be an Undisciplined child. We first consider whether the Constitution affords her such right.

In In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the United States Supreme Court held, Inter alia, that 'the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.' A similar statutory right to counsel for indigent juveniles at a hearing which could result in commitment to an institution is afforded by G.S. § 7A--451(a)(8).

The initial petition alleging that Valerie was an Undisciplined child was heard on August 17, 1971. At that time the 1969 version of Article 23, Chapter 7A of the North Carolina General Statutes (Jurisdiction and Procedure Applicable to Children) was in effect. It was not until September 1, 1971, that the present version of that article became effective. See 1971 Session Laws, ch. 1180. Therefore, we must consult the 1969 version to determine whether the hearing of the 'undisciplined child' petition was a proceeding 'which may result in commitment to an institution in which the juvenile's freedom is curtailed.'

The 1969 version of Article 23 of Chapter 7A of the General Statutes, in relevant part, contains the following definitions in G.S. § 7A--278:

'(1) 'Child' is any person who has not reached his sixteenth birthday.

'(2) 'Delinquent child' includes any child who has committed any criminal offense under State law or under an ordinance of local government, including violations of the motor vehicle laws or a child who has violated the conditions of his probation under this article.

'(5) 'Undisciplined child' includes any child who is unlawfully absent from school, or who is regularly disobedient to his parents or guardian or custodian and beyond their disciplinary control, or who is regularly found in places where it is unlawful for a child to be, or who has run away from home.'

G.S. § 7A--286 (1969), after requiring the judge to select the disposition which provides for the protection, treatment, rehabilitation or correction of the child, as may be appropriate in each case, makes the following alternatives available to any judge exercising juvenile jurisdiction: '(4) In the case of any child who is delinquent or undisciplined, the court may: a. Place the child on probation . . .; or b. Continue the case . . .; or, If the child is delinquent, the court may c. Commit the child to the care of the North Carolina Board of Juvenile Correction. . . .' (Emphasis added.)

Despite the somewhat awkward structure of G.S. § 7A--286 (1969), it is clear that under its terms no judge exercising juvenile jurisdiction had any authority upon finding the child to be Undisciplined to commit such child to the Board of Juvenile Correction for assignment to a State facility in which the juvenile's freedom is curtailed. The statute permitted incarceration of Delinquent children only. A contrary holding by the Court of Appeals in In re Martin, 9 N.C.App. 576, 176 S.E.2d 849 (1970), is apparently based on a misconstruction of the statute and is not authoritative. We emphasize that there was no authority under G.S. § 7A--286 (1969) for the commitment of an Undisciplined child to the North Carolina Board of Juvenile Correction where the child may be assigned to a State facility in which the juvenile's freedom is curtailed.

Therefore, we hold that neither Gault, supra, nor G.S. § 7A--451(a)(8) afforded Valerie Walker the right to counsel at the hearing on the initial petition alleging her to be an undisciplined child, for under the wording of G.S. § 7A--286(4) (1969) that hearing could not result in her commitment to an institution in which her freedom would be curtailed. Nor would there be such a right under the statute as presently written. See G.S. § 7A--286(5) (1971).

Appellant would have this Court go further than Gault requires. She argues for the right to counsel at the hearing of an Undisciplined child petition on the theory that such a hearing is a critical stage in the juvenile process since it subjects the child to the risk of probation and since a violation of probation means that the child is Delinquent and subject to commitment. In such fashion appellant seeks to engraft upon the juvenile process the 'critical stage' test used by the United States Supreme Court in determining the scope of the Sixth Amendment right to counsel in Criminal prosecutions. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). We find no authority for such engraftment. Whatever may be the proper classification for a juvenile proceeding in which the child is alleged to be undisciplined, it certainly is not a criminal prosecution within the meaning of the Sixth Amendment which guarantees the assistance of counsel 'in all criminal prosecutions.' In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd. 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

The right to counsel delineated in Gault has not been extended to other procedural steps in juvenile proceedings. Neither this Court nor the United States Supreme Court has ever applied the 'critical stage' test to the juvenile process. Accordingly, we hold that counsel is not constitutionally required at the hearing on an Undisciplined child petition. See In re Gault, supra (n. 48) in which it is stated: '(W)hat we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the juvenile process.'

The fact that a child initially has been found to be undisciplined and placed on probation is merely incidental to a later petition and motion alleging delinquency based on violation of the terms of probation. The initial finding can never legally result in commitment to an institution in which the juvenile's freedom is curtailed. It is only the latter petition and motion, and the finding that the child is a Delinquent child by reason of its conduct since the initial hearing, they may result in the child's commitment. See G.S. § 7A--286(4)(b) and (c) (1969). Compare State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).

Appellant's second contention is that G.S. § 7A--286 violates the Equal Protection Clause of the Fourteenth Amendment in that it subjects an undisciplined child to probation and the concomitant risk of incarceration when the child has committed no criminal offense, while adults are subjected to probation and incarceration only for actual criminal offenses. See G.S. § 15--197.

The Equal Protection Clause 'avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). Thus, if a classification is 'based on differences that are reasonably related to the purposes of the Act in which it is found', then it does not offend the Equal Protection Clause, Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972), unless the classification affects 'fundamental' interests or is 'inherently suspect,' E.g., Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), in which event it 'must be closely scrutinized and carefully confined', and the State must advance a "compelling interest' which justifies imposing such heavy burdens' in order for the classification to be constitutional. Harper v. Virginia State Board of Elections, supra; Williams v. Rhodes, supra. A showing of mere rationality is insufficient.

The purpose of the Juvenile Court Act 'is not for the punishment of offenders but for the salvation of children'. Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198 (1905). The Act treats 'delinquent children not as criminals, but as wards, and undertakes . . . to give them the control and environment that may lead to their reformation, and enable them to become law-abiding and useful citizens, a support and not a hindrance to the commonwealth.' State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920). The State must exercise its power as 'parens patriae to protect and provide for the comfort and well-being of such of its citizens as by reason of infancy . . . are unable to take care of themselves.' County of McLean v. Humphreys, 104 Ill. 378 (1882). Thus, juveniles are in need of supervision and control due to their inability to protect themselves. In contrast, adults are regarded as self sufficient.

Therefore, the classification here challenged is based on differences between adults and children; and there are...