Opinion
No. COA13–13.
2013-06-4
In the Matter of E.M.
Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for juvenile.
Appeal by juvenile from orders entered 24 and 25 July 2012 by Judge Pat Evans in Durham County Superior Court. Heard in the Court of Appeals 6 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for juvenile.
BRYANT, Judge.
Where the trial court failed to follow the mandate of a statute providing procedures for finding a juvenile in contempt, we vacate the trial court's contempt order. Where the trial court failed to make appropriate findings in the juvenile's disposition order, we vacate the disposition order and remand for a new dispositional hearing.
Facts and Procedural History
On 18 June 2012, the State filed a juvenile petition alleging that juvenile was
[a] delinquent juvenile as defined by G.S. 7B–1501(7) in that on or about and in [Durham County], [juvenile] did unlawfully and willfully possess marijuana, a controlled substance which is included in Schedule VI of the North Carolina Controlled Substances Act, in violation of G.S. 90–95(a)(3).
At an adjudicatory hearing held on 14 July 2012, juvenile admitted to possession of marijuana, a class 3 misdemeanor.
Following juvenile's admission, the following exchange took place between the trial court, juvenile, and juvenile's counsel:
THE COURT: You need to stop smoking marijuana, sir. Where do you get your marijuana?
[Juvenile]: I'd rather not say.
[Juvenile's counsel]: You know, I told you she was going to ask you that. I told you she was going to ask you that.
THE COURT: What did you say?
[Juvenile]: I said, “I'd rather not say.”
THE COURT: I asked you a question.
[Juvenile's COUNSEL]: I told you she was going to ask you. Son, you've got to tell her and she's not going to wait long and that's going to impact what she does. It's up to you.
[Juvenile]: I'd rather not say—talk right now.
THE COURT: Did you say, “You'd rather not say?”
[Juvenile's counsel]: Is there someone here that might know who you're talking about? Right now?
[Juvenile]: No.
[Juvenile's counsel]: No? Would you rather tell me and have me take that up to the Court?
[Juvenile]: No.
[Juvenile's counsel]: Well, all right.
THE COURT: Take him to the back of the room to think about it.
...
THE COURT: All right. I hold him in contempt of this Court.... He'll spend the next 24 hours in detention. He's to be brought back before me tomorrow morning.
The trial court entered an order for secure custody/detention on 24 July 2012 finding that “the Juvenile is held in contempt for 24 hours as a direct result of the Juvenile refusing to answer a direct question from the Judge.”
On 25 July 2012, the trial court entered a disposition order adjudicating juvenile at a Level I disposition and placing juvenile on probation for a period of six months under certain conditions. Juvenile appeals.
_________________________
Juvenile presents the following issues on appeal: whether the trial court erred by (I) entering the contempt order against juvenile pursuant to N.C. Gen.Stat. § 5A–32; (II) entering the disposition order (a) pursuant to N.C. Gen.Stat. § 7B–2501(c); (b) pursuant to N.C. Gen.Stat. § 7B–2510; and (c) pursuant to N.C. Gen.Stat. § 7B–2411.
Standard of Review
Juvenile alleges violations of numerous statutory mandates. “[A]lleged statutory errors are questions of law. A question of law is reviewed de novo. Under the de novo standard, the Court considers the matter anew and freely substitutes its own judgment for that of the lower court.” State v. Reeves, ––– N.C.App. ––––, ––––, 721 S.E.2d 317, 322 (2012) (citations and quotation marks omitted).
I
Juvenile first argues that the trial court erred by holding him in contempt and entering the 24 July 2012 order for secure custody/detention. Juvenile contends that the trial court erred by failing to comply with the requirements of section 5A–32 of the North Carolina General Statutes. We agree.
The following conduct constitutes contempt by a juvenile, in pertinent part:
(1) Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings.
(2) Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority.
(3) Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution.
N.C.G.S. § 5A–31 (a)(1)-(3) (2011).
A juvenile is found to be in direct contempt when the following conditions are met:
(1) The act is committed within the sight or hearing of a presiding judicial official.
(2) The act is committed in, or in the immediate proximity to, the room where proceedings are being held before the court.
(3) The act is likely to interrupt or interfere with matters then before the court.
N.C.G.S. § 5A–31(b). “Contempt by a juvenile that is not direct contempt by a juvenile is indirect contempt by a juvenile.” N.C.G.S. § 5A–31(c).
In the present case, the trial court did not indicate whether juvenile was in direct or indirect contempt. The order found “[t]hat the Juvenile is held in contempt for 24 hours as a direct result of the Juvenile refusing to answer a direct question from the Judge.” Based on the circumstances surrounding juvenile's conduct and because juvenile's refusal to answer the trial court's question fulfills all the conditions listed under N.C.G.S. § 5A–31(b), for purposes of our review, it appears that the trial court found juvenile to be in direct contempt.
N.C.G.S. § 5A–32(a) (2011) states that “[a] presiding judge may summarily impose measures in response to direct contempt by a juvenile[.]” However,
Before imposing measures summarily, the judicial official shall do all of the following:
(1) Give the juvenile summary notice of the contempt allegation and a summary opportunity to respond.
(2) Appoint an attorney to represent the juvenile and allow time for the juvenile and attorney to confer.
(3) Find facts supporting the summary imposition of measures in response to contempt by a juvenile. The facts shall be established beyond a reasonable doubt.
N.C.G.S. § 5A–32 (a)(1)-(3). It is also well established that “[t]he court shall not impose any of these sanctions without finding first that the juvenile's act or omission was willfully contemptuous or that the act or omission was preceded by a clear warning by the court that the conduct is improper.” N.C.G.S. § 5A–32(c).
At juvenile's adjudicatory hearing, the following exchange took place:
THE COURT: You need to stop smoking marijuana, sir. Where do you get your marijuana?
[Juvenile]: I'd rather not say.
[Juvenile's counsel]: You know, I told you she was going to ask you that. I told you she was going to ask you that.
THE COURT: What did you say?
[Juvenile]: I said, “I'd rather not say.”
THE COURT: I asked you a question.
[Juvenile's COUNSEL]: I told you she was going to ask you. Son, you've got to tell her and she's not going to wait long and that's going to impact what she does. It's up to you.
[Juvenile]: I'd rather not say—talk right now.
THE COURT: Did you say, “You'd rather not say?”
[Juvenile's counsel]: Is there someone here that might know who you're talking about? Right now?
[Juvenile]: No.
[Juvenile's counsel]: No? Would you rather tell me and have me take that up to the Court?
[Juvenile]: No.
[Juvenile's counsel]: Well, all right.
THE COURT: Take him to the back of the room to think about it.
...
THE COURT: All right. I hold him in contempt of this Court.... He'll spend the next 24 hours in detention. He's to be brought back before me tomorrow morning.
Based on the foregoing exchange, it appears the trial court failed to comply with the mandate of N.C.G.S. § 5A–32(a). Juvenile was not given summary notice of the contempt allegations and a summary opportunity to respond. While defendant was requested by the court to answer a question, and in not doing so may have exhibited what the trial court considered contemptuous behavior, the trial court was nevertheless required to give juvenile notice that his failure to answer might result in a finding of contempt, and an opportunity for juvenile to respond. See State v. Verbal, 41 N.C.App. 306, 307, 254 S.E.2d 794, 795 (1979) (stating that “the judicial official's findings in a summary contempt proceeding should clearly reflect that the contemnor was given an opportunity to be heard, along with a summary of whatever response was made and that judicial official's finding that the excuse or explanation proffered was inadequate or disbelieved.”). While juvenile was represented by counsel who was instructed by the trial court to “take [juvenile] to the back of the room to think about it,” based on this record, the trial court never told juvenile his failure to answer may result in a finding of contempt. Therefore, the judgment of the trial court on direct contempt was fatally deficient. The trial court's order for secure custody/detention based on direct contempt is vacated.
II
a. N.C. Gen.Stat. § 7B–2501(c)
Juvenile contends, and the State concedes, that the trial court erred by entering a disposition order and failing to make findings of fact in violation of section 7B–2501(c) of the North Carolina General Statutes. We agree.
N.C. Gen.Stat. § 7B–2501(c) provides the following:
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) (2011). It is well established that “[t] he trial court is required to make findings demonstrating that it considered the N.C.G.S. § 7B–2501(c) factors in a dispositional order entered in a juvenile delinquency matter.” In re J.J., Jr., ––– N.C.App. ––––, ––––, 717 S.E.2d 59, 65 (2011) (citing In re V.M., 211 N.C.App.389, ––––, 712 S.E.2d 213, 215 (2011)).
In the instant case, at the adjudicatory hearing, juvenile admitted to Class 3 misdemeanor possession of marijuana, and a disposition order was entered one day later. However, the trial court's dispositional order does not contain findings addressing the N.C.G.S. § 7B–2501(c) factors. We also note that the trial court did not indicate in open court that it had considered any of these factors in reaching its decision. Because the trial court's written dispositional order is insufficient to allow this Court to conduct a proper review of whether it considered the N.C.G.S. § 7B–2501(c) factors, we vacate the trial court's dispositional order and remand this matter to the trial court for a new dispositional hearing.
b. N.C. Gen.Stat. § 7B–2510
Juvenile argues that the trial court erred by requiring juvenile to cooperate with electronic monitoring at the discretion of the chief court counselor as a condition of his probation in violation of section 7B–2510(b) of the North Carolina General Statutes.
N.C. Gen.Stat. § 7B–2510(b) (2011) states that the trial court may “order the juvenile to comply, if directed to comply by the chief court counselor ... [to][c] ooperate with electronic monitoring[.]” N. C.G.S. § 7B–2510 (b)(4). However, it further provides that electronic monitoring may only be imposed as a condition of probation to a juvenile who is subject to Level 2 disposition. Id.
At juvenile's disposition hearing held on 25 July 2012, the trial court judge orally stated that “[if] directed to do so by the Chief Court Counselor [, juvenile is] to cooperate with electronic monitoring.” Although the trial court judge made this statement in open court, the written disposition order does not indicate that juvenile is to cooperate with electronic monitoring at the discretion of the chief court counselor.
“The dispositional order shall be in writing” and “[t]he court shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition[.]” N .C.G.S. § 7B–2512 (emphasis added). Because the written disposition order does not require this condition of probation, the oral order is not valid and does not apply to juvenile.
Next, juvenile argues that the trial court violated N.C.G.S. § 7B–2510 by impermissibly delegating its authority when it ordered as conditions of his probation, the following:
Not be in the following places: set by Parent/[juvenile court counselor.]
Not associate with anyone the juvenile knows to have an adult criminal record or juvenile delinquency adjudication or the following persons: Other: set by [juvenile court counselor.]
Juvenile argues that the trial court is not permitted to delegate or vest its discretion in another person or authority when determining a juvenile's condition of probation.
Both the juvenile and the State rely on the holding in In re S.R.S., 180 N.C.App. 151, 636 S.E.2d 277 (2006), in support of their respective positions. In S.R.S., the juvenile challenged the following special conditions of his probation:
[t]hat the juvenile abide by any rules set out by the Court Counselor and the juvenile's parents, including, but not limited to, curfew rules and rules concerning those with [whom] he may or may not associate.
...
[that juvenile] cooperate with any out of home placement if deemed necessary, or if arranged by the Court Counselor, including, but not limited to, a wilderness program.
Id. at 158–59, 636 S.E.2d at 283. The S.R.S. Court held that because the first condition of probation did “not vary substantially from that allowed per [N.C.G.S. § 7B–2510(a)(3) ],” it was valid and the trial court did not err in imposing it. As to the second condition, the S.R.S. court reversed, stating that it was an impermissible delegation of authority as held in In re Hartsock, 158 N.C.App. 287, 580 S.E.2d 395 (2003). In Hartsock, we held that “the court, and the court alone, must determine which dispositional alternatives to utilize with each delinquent juvenile.” Id. at 292, 580 S.E.2d at 399.
.N.C.G.S. § 7B–2510(3) states that as a condition of probation, the court may impose the condition “[t]hat the juvenile shall not violate any reasonable and lawful rules of a parent, guardian, or custodian.”
Here, dispositional alternatives found in N.C.G.S. § 7B2506 are not at issue, only the conditions of probation found in N.C.G.S. § 7B–2510. Therefore, consistent with the portion of our holding in S.R.S. that related to conditions of probation, the conditions that juvenile in the instant case challenges do not vary substantially from those allowed per statute in N.C.G.S. § 7B–2510 (a)(6). N.C.G.S. § 7B–2510 (a)(6) (2011) states that
The court may impose conditions of probation that are related to the needs of the juvenile and that are reasonably necessary to ensure that the juvenile will lead a law-abiding life, including:
...
(6) That the juvenile not associate with specified persons or be in specified places.
Accordingly, we hold that the trial court did not err in imposing these conditions of probation.
c. N.C. Gen.Stat. § 7B–2411
In his last argument, juvenile asserts that the trial court erred by failing to affirmatively state that the allegations in the juvenile petition were “proven beyond a reasonable doubt” in violation of section 7B–2411 of the North Carolina General Statutes. Juvenile's argument is without merit.
N.C. Gen.Stat. § 7B–2411 (2011) states that
[i]f the court finds that the allegations in the petition have been proved as provided in G.S. 7B–2409 [ (stating that “[t]he allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt.”) ], the court shall so state in a written order of adjudication....
The adjudication order filed on 25 July 2012 states the that
[t]he following facts have been proven beyond a reasonable doubt: That through counsel the juvenile admits to the allegations as alleged. That the juvenile understands [his] rights and makes the admission freely. That the State has presented a reasonable factual basis. That the juvenile did in fact commit the allegations as alleged.
(emphasis added). Based on our review, the trial court complied with the statutory mandate of N.C.G.S. § 7B–2411.
Juvenile's contempt order is vacated; Juvenile's disposition order is vacated and remanded. Chief Judge MARTIN and Judge DAVIS concur.
Report per Rule 30(e).