Opinion
No. COA15-894
05-10-2016
IN THE MATTER OF: T.L.M.
Attorney General Roy Cooper, by Assistant Attorney General Kari R. Johnson, for the State. Mary McCullers Reece for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Richmond County, No. 15 JB 22 Appeal by juvenile from order entered 17 March 2015 by Judge Scott Brewer in Richmond County District Court. Heard in the Court of Appeals 25 February 2016. Attorney General Roy Cooper, by Assistant Attorney General Kari R. Johnson, for the State. Mary McCullers Reece for juvenile-appellant. GEER, Judge.
T.L.M., a juvenile, appeals from the district court's disposition and commitment order committing him to a youth development center in the Division of Juvenile Justice for a minimum of six months and an indefinite commitment thereafter until he turns 18, based on a probation violation following an adjudication of delinquency for felony larceny of a motor vehicle. On appeal, the juvenile argues primarily that the trial court failed to make adequate findings in its dispositional order under N.C. Gen. Stat. § 7B-2501 (2015) and N.C. Gen. Stat. § 7B-2512 (2013). Because we have concluded that the district court's disposition order, considered together with a predisposition report, risk assessment, and needs assessment, incorporated in the order, adequately indicated that the trial court considered the factors set forth in N.C. Gen. Stat. § 7B-2512 when entering the disposition order, we affirm.
The 2015 version of the statute, effective 1 December 2015, added a second section (part (b)) and made what is quoted above part (a). The 2013 version of the statute applies to this case.
Facts
On 5 February 2014, three delinquent juvenile petitions were filed in Mecklenburg County against the juvenile (born 15 May 2000), alleging that he committed two offenses of conspiring to commit the felony of breaking and entering a motor vehicle and one offense of communicating threats. The juvenile admitted to a misdemeanor offense of conspiring to commit the breaking and entering of a motor vehicle on 8 May 2014, and all other charges were dismissed. On 9 May 2014, the district court entered an order adjudicating the juvenile delinquent. The court imposed a Level 1 disposition and placed the juvenile on six months' probation with numerous conditions, including that the juvenile remain on good behavior and not break any further laws, attend school, not possess or use prohibited controlled substances, complete a mental health assessment, cooperate with any recommended treatment plans, report to a court counselor, complete 50 hours of community service, and comply with a court-imposed curfew.
On 10 September 2014, three new delinquent juvenile petitions were filed against the juvenile for misdemeanor simple assault, felony larceny of a motor vehicle, and misdemeanor resisting, delaying, and obstructing an officer. In addition, on 15 September 2014, three more petitions were filed against the juvenile for curfew violation, misdemeanor resisting, delaying, and obstructing an officer, and misdemeanor possession of a motor vehicle.
On 14 October 2014, the juvenile admitted to the felony larceny of a motor vehicle charge. The rest of his 10 September 2014 charges were dismissed. The juvenile was adjudicated delinquent for larceny of a motor vehicle and received a Level 2 disposition, including 12 months of probation. The terms of his probation included, among other things, that the juvenile comply with the conditions contained in existing disposition orders, comply with court-ordered curfew, and follow general terms and conditions. In addition, the juvenile was to "[c]ooporate [sic] with all recommended services."
On 2 January 2015, the juvenile's court counselor Robert T. David filed a motion for review based on probation violations in Richmond County, alleging that the juvenile had violated the terms of his probation by being suspended from school, failing to comply with his community service, failing to cooperate with services, and defying his parents' rules at home. Specifically, the motion stated in part that:
Because the juvenile moved to Richmond County, the case was transferred from Mecklenburg County to Richmond County on 14 October 2014.
In Richmond County on or about October 10, 2014 to December 19, 2014, the juvenile was suspended on 8 separate occasion[s] for defiant behavior, profanity to school staff and disrespect. The juvenile has refused to comply with community service. The juvenile has refused to receive a mental health assessment and/or treatment. The juvenile has failed to adhere to the rules of his parent by exhibiting defiant behavior.
The motion for review was heard at a hearing in Richmond County on 17 March 2015. The juvenile attended the hearing and was represented by counsel. His aunt was also present, and the juvenile's counsel explained that the juvenile was now living with his aunt and asked that the court continue the matter "to see if she can get this young man on the right path." The State indicated that it would prefer to proceed that day, and the trial court offered to give the juvenile's counsel more time to speak with him, but his counsel replied, "Judge, I've talked with him the best I can, Your Honor. I don't have anything other than what the petition alleged[.]"
A predisposition report had been completed on 16 March 2015. At the hearing, the juvenile's counsel stated that the juvenile admitted the contents of the predisposition report regarding the juvenile's school history and his failure to perform community service. In the predisposition report, the juvenile's court counselor, Mr. David, summarized in detail the juvenile's history since relocating from Mecklenburg County. The report indicated that the juvenile's mother contacted Mr. David and "explained that the juvenile was out of control, has refused to do anything and he has revealed to her that he would not submit to the courts [sic] orders." Mr. David noted that the juvenile, since being placed on probation, had been defiant "in school, at home and toward the court." Between October 2014 and Christmas break, the juvenile was officially suspended from school for a total of 19 days. The juvenile's principal also indicated to Mr. David that there were numerous occasions where the juvenile was sent home or to in-school suspension "that were not documented in order to assist the juvenile in staying in school."
Mr. David's report also stated that after returning from winter break, the juvenile was suspended for a week for his defiant behavior and eventually transferred to another school. On 27 February 2015, Mr. David received a call from the principal of the juvenile's new school, who stated that the juvenile was suspected of being under the influence. Mr. David administered a drug screen, which indicated that the juvenile tested positive for "THC," which led to another suspension, this time for 10 days. The juvenile's attendance record and school disciplinary referrals were attached to Mr. David's report.
Mr. David indicated in his report that he "attempted to assist [the juvenile] through providing resources that could help him complete supervision successfully." The juvenile was referred to Eckerd Residential treatment, but he would leave when the caseworker visited his home and the juvenile refused to go to his doctor to complete a TB test, as required to complete the enrollment process. In addition, Mr. David's report indicated that "[t]he juvenile has also refused to attend mental health treatment and community service." When informed of the consequences of not complying, the juvenile responded, "[W]hatever." In addition, Mr. David assigned 19 risk points to the juvenile, placing him in the "high risk" category. Based on the foregoing, Mr. David recommended that the juvenile receive a Level 3 commitment.
After acknowledging that Mr. David had submitted the predisposition report to the court, the trial court asked Mr. David to describe at the hearing how the juvenile had done. Mr. David responded:
Your Honor, [the juvenile] has done nothing. I've extended myself on many occasions. Contacted him at school, contacted him at home, given him opportunity after opportunity to complete community service. As far as his behavior, continually just whenever I would speak with him he would barely talk or he would nod his head. I would explain the consequences to [the juvenile] and he was like, "Whatever," or "Okay, okay, I'm going to change," but nothing ever changed. As you see in the report, on one occasion I was called to the school because they thought he was intoxicated. I showed up at the school and I did a drug test, and initially he didn't admit that he was using, and then he said he did and after the test he was suspended, and his belligerent behavior continued. I worked with his mother and [the juvenile] trying to place him into Eckerd Wilderness Camp as an alternative to this recommendation. In speaking to his mother, he refused to go to the doctor to get the TB test, or to mental health. I just received a report today where there were missed appointments. In speaking to the mother, the mother said he wouldn't be found [when] I referred him to Eckerd Community Based Services. They would show up at the home and he would leave. So, Your Honor, we have exhausted all our resources we have in the community.
After hearing argument from the juvenile's trial counsel that the juvenile's aunt might be able to help him, the trial court spoke directly to the juvenile, finding:
You haven't done one thing that was asked of you; not one. And all the programs that Mr. David set up, you just ignored, blew him off, didn't cooperate with him. I've been doing this job for a long time. Mr. David is one of the best I've seen at the job he does, and for him to not want to give you more time and for him to go ahead and want to get this done today means he truly has done everything he can do. He's one of the ones that over the years is the slowest to come to this point to ask for commitment. He tries to bend over backwards to help people, to keep youth from being committed to Youth Development Centers. And if you had just started -- you didn't even start down the road.The court concluded, "It appears that all the community resources have been exhausted due [to] the juvenile's willful and defiant behavior and willful failure to comply. I'm going to order that he be placed immediately in the Youth Development Center until his eighteenth birthday."
The trial court entered a Level 3 disposition and commitment order that same day, 17 March 2015, committing the juvenile to the Department of Juvenile Justice at a youth development center for a minimum of six months and an indefinite period thereafter or until the juvenile reaches the age of 18. The court's order indicated that it had received and considered a predisposition report, risk assessment, and needs assessment, and the order incorporated the contents of those reports by reference. In addition, the court included as an additional finding: "The Court finds that all community resources due to the Juvenile's definate [sic] behavior have been exhausted." The court also noted (by checking next to a pre-printed field) that "[t]he juvenile has been adjudicated for a violent or serious offense and Level III is authorized by G.S. 7B-2508." The juvenile, through his mother, pursuant to N.C. Gen. Stat. § 7B-2604(a) (2015), timely appealed the district court's order to this Court.
Discussion
On appeal, the juvenile argues that the trial court's Juvenile Level 3 Disposition and Commitment Order (Based on Violation of Probation) -- on the pre-printed AOC-J-468, Rev. 10/12 form -- lacked adequate findings of fact. The juvenile points out that beyond completion of the pre-printed portions of the form, the order included only one additional finding of fact in support of its decision to order a Level 3 disposition: "The Court finds that all community resources due to the Juvenile's definate [sic] behavior have been exhausted."
This Court has held that "juvenile probation revocation proceedings are dispositional, and subject to the statutory provisions governing juvenile delinquency dispositions." In re V.M., 211 N.C. App. 389, 391, 712 S.E.2d 213, 215 (2011). N.C. Gen. Stat. § 7B-2512 provides: "The dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law."
"On appeal, we will not disturb a trial court's ruling regarding a juvenile's disposition absent an abuse of discretion, which occurs 'when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.' " In re J.B., 172 N.C. App. 747, 751, 616 S.E.2d 385, 387 (quoting In re Robinson, 151 N.C. App. 733, 737-38, 567 S.E.2d 227, 229 (2002)), aff'd, 360 N.C. 165, 622 S.E.2d 495 (2005). However, "[w]e review a lower court's alleged statutory errors de novo." In re K.C., 226 N.C. App. 452, 462, 742 S.E.2d 239, 246 (2013).
In arguing that the trial court's order contained inadequate findings of fact, the juvenile points to N.C. Gen. Stat. § 7B-2501(c), which provides:
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:
This Court has held that "the 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 V.M., 211 N.C. App. at 391-92, 712 S.E.2d at 215.(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.
In In re V.M., the trial court entered a Level 3 disposition and commitment order after finding that the juvenile had violated his probation following a Level 2 disposition. Id. at 389, 712 S.E.2d at 214. "[T]he trial court checked boxes indicating that it had received, considered, and incorporated by reference the predisposition report, risk assessment, and needs assessment, and that '[t]he juvenile has been adjudicated for a violent or serious offense and Level III is authorized by G.S. 7B-2508.' " Id. at 392, 712 S.E.2d at 215. This Court, however, ultimately reversed the trial court's disposition and remanded for a new hearing because the trial court's order contained no additional findings of fact and the court failed to make substantive findings addressing the factors listed in N.C. Gen. Stat. § 7B-2501(c). 211 N.C. App. at 392, 712 S.E.2d at 215-16.
In subsequent decisions, however, this Court has concluded that in determining compliance with N.C. Gen. Stat. § 7B-2501(c) and In re V.M., our review is not limited to the findings of fact on the pre-printed AOC form, but rather we may look, in addition, to reports and assessments incorporated by reference in the order and statements and testimony at the hearing. Thus, in In re D.O.B., 213 N.C. App. 422, 714 S.E.2d 274, 2011 WL 2853299, at *2, 2011 N.C. App. LEXIS 1516, at *6 (2011) (unpublished), this Court noted that in addition to findings of fact in the order's "pre-printed fields" and "Other Findings" set out on the AOC form, "[t]he trial court also indicated its receipt and consideration of a predisposition report and risk and needs assessments, which were each incorporated by reference and attached to the Order." The Court then determined that "[w]hile nothing in N.C. Gen. Stat. §§ 7B-2501 or 7B-2512 requires the trial court to make a written finding of fact for every factor it must assess, the " 'Other Findings' and the contents of the reports incorporated into the subject Order, especially in conjunction with the transcript, address at least four, if not all five, of the § 7B-2501(c) considerations." Id., 2011 WL 2853299, at *2, 2011 N.C. App. LEXIS 1516, at *6-7. See also In re C.D.P., ___ N.C. App. ___, 764 S.E.2d 700, 2014 WL 4071689, at *7, 2014 N.C. App. LEXIS 944, at *18 (2014) (unpublished) (in considering whether district court "properly addressed" the required statutory factors in § 7B-2501(c), "[t]aking the district court's disposition order and the incorporated report and assessments as a whole").
Here, the trial court's order indicates that it received, considered, and incorporated the contents of a predisposition report, a risk assessment, and a needs assessment. The form states that these reports if incorporated must be attached -- the juvenile has not, however, argued on appeal that the order, as filed by the trial court, failed to attach these reports. In addition, the transcript of the hearing includes an explanation by the court counselor who authored the predisposition report and remarks by the trial judge. Consistent with prior panels of this Court, we consider the totality of the order and the reports incorporated in that order, together with the transcript, in determining whether the trial court complied with N.C. Gen. Stat. § 7B-2501(c). Id.
With respect to the first factor -- the seriousness of the offense -- the order itself finds that the juvenile "has been adjudicated for a violent or serious offense . . . ." In In re C.D.P., this Court concluded: "[W]e can assume that the court's finding that [the juvenile] has been adjudicated for a violent or serious offense satisfies the first factor required in N.C. Gen. Stat. § 7B-2501." Id., 2014 WL 4071689, at *6, 2014 N.C. App. LEXIS 944, at *15.
The second factor is the need to hold the juvenile accountable. At the hearing, the trial judge stated to the juvenile: "You haven't done one thing that was asked of you; not one. And all the programs that Mr. David set up, you just ignored, blew him off, didn't cooperate with him. . . . He tries to bend over backwards to help people, to keep youth from being committed to Youth Development Centers. And if you had just started -- you didn't even start down the road. All right. It appears that all the community resources have been exhausted due [to] the juvenile's willful and defiant behavior and willful failure to comply." In addition, the predisposition report advised the trial judge that the juvenile had told his mother that "he would not submit to the courts [sic] orders" and that the juvenile had "shown his defiant [sic] in school, at home and toward the court." Further, "[w]hen informed of consequences, the juvenile said 'whatever'." The report concluded: "Considering the juvenile's defiance and that [the juvenile] has refused to comply with court ordered programs and all community resources have been exhausted, the following recommendations are requested." The report then recommended Level 3 commitment.
The judge's remarks, combined with the predisposition report, show that the trial court considered the second factor. See In re D.O.B., 2011 WL 2853299, at *3, 2011 N.C. App. LEXIS 1516, at *7 (concluding that court had properly considered second factor when court found that juvenile severed ankle monitor and did not comply with any term of his probation and judge told juvenile at hearing that juvenile had done nothing but continue his bad behavior).
Turning to the third factor (the importance of protecting the public safety), the risk assessment incorporated into the trial court's order found that the juvenile was a high risk, based on, among other factors, the fact the juvenile had two to three prior offenses, including one prior Class F to I felony or A-1 misdemeanor, the juvenile had serious problems at school, and the juvenile "regularly associates with others who are involved in delinquent/criminal activity." The predisposition report stated that the juvenile would not be appropriate for a non-fenced facility because he was a "run risk." Additionally, the report advised the court that the juvenile's mother had contacted the court counselor because the "juvenile was out of control" and "he has revealed to her that he would not submit to the courts [sic] orders." From these considerations, we can infer that the trial court considered the factor of protecting the public safety.
As for the fourth factor, the degree of culpability indicated by the circumstances of the particular case, the trial judge found in the order that the reason community resources were not an option was "due to the Juvenile's [defiant] behavior." Likewise, at the hearing, the judge concluded: "It appears that all the community resources have been exhausted due [to] the juvenile's willful and defiant behavior and willful failure to comply." The predisposition report and the attached school disciplinary records, establishing that the juvenile had done nothing to comply with the terms of probation and had indicated that he would not comply with court orders, further addresses the degree of culpability factor. Indeed, the order, the predisposition report, and the transcript all emphasize the juvenile's culpability in his probation violations, attributing them to his outright refusal to comply with the terms of probation. Compare In re C.D.P., 2014 WL 4071689, at *7, 2014 N.C. App. LEXIS 944, at *17 (concluding that fourth factor was not addressed when predisposition report did not include any evidence "concerning [the juvenile's] culpability in violating his probation").
Finally, as to the fifth factor, the rehabilitative and treatment needs of the juvenile, a risk and needs assessment was properly completed, considered, and incorporated into the trial court's order. The risk assessment indicated that the juvenile was at a "high risk" and the needs assessment concluded that the juvenile had "medium needs." In addition, the trial court's finding that community resources had been exhausted reflected the court's determination that the juvenile's risk and needs could not be addressed in the community and required commitment. See id., 2014 WL 4071689, at *7, 2014 N.C. App. LEXIS 944, at *18 (holding that predisposition report's recommendation for commitment to a Youth Development Center "combined with the incorporation of [the court counselor's] risk assessment and needs assessment satisfies the fifth statutory factor").
In sum, after reviewing the trial court's order and the incorporated reports as a whole, as well as the transcript, we conclude that the trial court addressed all five factors from N.C. Gen. Stat. § 7B-2501(c). Even if it could be shown that any of the factors were not adequately considered, the juvenile cannot show that he was prejudiced by any omission. See, e.g., State v. Love, 177 N.C. App. 614, 623, 630 S.E.2d 234, 240-41 (2006) ("[A] new trial does not necessarily follow a violation of statutory mandate. Defendants must show not only that a statutory violation occurred, but also that they were prejudiced by this violation." (internal citations omitted)). The trial court made plain in its order and at the hearing that the primary reasons for the Level 3 commitment were the juvenile's refusal over an extended period of time to comply with any of the terms of his probation or cooperate with extensive efforts to obtain assistance and treatment for him in the community. Because of the trial court's finding that all community resources had been exhausted, the juvenile -- who does not challenge that finding -- cannot show that there is any reasonable possibility that further consideration of the factors set out in N.C. Gen. Stat. § 7B-2501(c) would have resulted in a different disposition. Accordingly, we affirm the trial court's disposition order.
AFFIRMED.
Judges TYSON and INMAN concur.
Report per Rule 30(e).