In re D.G. , 191 N.C. App. 752 ( 2008 )

STEELMAN, Judge.

Where the trial court’s finding of fact challenged by the juvenile is supported by competent evidence in the record, it is binding on appeal. The trial court did not err in modifying the prior dispositional order as to the juvenile.

I. Factual and Procedural Background

Juvenile petitions were filed against D.G., alleging that he hád committed the offenses of crime against nature, indecent liberties between children, assault on a handicapped person, and first-degree sex offense on a child. On 18 August 2005, D.G. admitted the allegations in the juvenile petition as to the first-degree sex offense charge. This was based upon D.G. having anal intercourse with a five-year-old boy when D.G. was fifteen years of age. Upon D.G.’s admission of the first-degree sex offense charge, the State dismissed the' other three juvenile petitions. At the time of the admission, D.G. was 15 years of age.

The trial court received a recommendation from Burke County Department of Social Services (“DSS”) and Foothills Area Authority (“Foothills”) that D.G. be placed in a DSS sex offender residential treatment facility. At that point in the hearing, counsel for DSS advised the court:

Our. concern is that he is an illegal alien; therefore, there is no state funding available. And any treatment facility would have to be borne totally by the tax payers of Burke County. I don’t know what Your Honor was contemplating whether our continued custody is necessary or not, but I would just to make the Court aware of the possible funding issue if he is placed in a residential facility.

The court was then assured by Nancy Mulholland, counselor from the Department of Juvenile Justice, that D.G.’s legal status had “little to do” with the availability of funding and that he was eligible for funding “due to a loophole in the legality of eligibility” and that state funds were available. Based upon these representations, the trial court entered a disposition order with a Level II disposition. This order directed that D.G. be placed in a residential sex offender treatment facility.

On 22 February 2006, a motion for review was filed, stating that D.G. was placed in a sex offender treatment facility on 26 September 2005, but that “funds were no longer available for this placement.” Since the victim resides in the home, D.G. could not be returned there. The court counselor sought guidance from the court.

On 4 April 2006, D.G. filed a motion to compel the State of North Carolina to provide him with sex offender treatment. The motion alleged that on 31 March 2006, Foothills Mental Health terminated funding for D.G.’s placement in Hands Up Homes and that without funding he was unable to remain there. On 6 April 2006 a response was filed by Burke County. This response attached a copy of a letter from counsel for Foothills, stating that under federal law, D.G. was not a “qualified alien” and that it could not provide funding for “custodial sex offender treatment.” This letter was based upon an opinion obtained from the Office of the North Carolina Attorney General.

On 27 April 2006, a hearing was held before Judge Brady on the motion to review and the motion to compel. During the course of the hearing, D.G. waived formal notice of a motion to amend or modify the prior dispositional order, but opposed any modification. The trial court denied the motion to compel the State to provide funding for D.G.’s residential sex offender treatment and modified the prior adjudication order to provide for a Level III disposition and committed D.G. to a Youth Development Center for an indefinite commitment not to exceed his nineteenth birthday. D.G. appeals.

II. Analysis

In his only argument on appeal, D.G. contends that the trial court erred in modifying the dispositional order from a Level II placement in a residential sex offender program to a Level III indefinite commitment to a Youth Development Center. We disagree.

Standard of review

On appeal, our standard of review of the trial court’s findings is whether they are supported by competent evidence. Pineda-Lopez v. N.C. Growers Ass’n, 151 N.C. App. 587, 589, 566 S.E.2d 162, 164 (2002). “If the court’s factual findings are supported by competent evidence, they are conclusive on appeal, even though there is evidence to the contrary.” Id. (citations omitted). We review challenges to the trial court’s conclusions of law de novo. In re D.H., C.H., B.M, C.H. III, 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006) (citation omitted).

Availability of Funding

D.G. first argues that the trial court erred in finding “[t]hat due to a lack of funding pursuant to State and Federal law said placement is no longer available to the Juvenile.” We disagree.

There is competent evidence in the record to support the trial court’s finding. Representatives of Burke County DSS and Foothills advised the court that they had explored and exhausted all avenues of funding for D.G.’s residential sex offender treatment, and due to federal law, there was none available. Counsel for D.G. acknowledged this, and then stated to the court: “. . . Your Honor can order the county to pay. I agree with Mr. Kuehnert [counsel for Burke County] with regards to the argument about the US Statute applying to the county funds also. The bottom line is that roughly $128,000 a year placement. If Your Honor orders the county to pay it, the county is going to request that the department find $128,000 in its budget to cover this individual’s placement and that’s like three or four positions at the department.” The only statement to the contrary at the hearing was from Tim Randolph, a resource broker for Meridian Behavioral Services, who stated anecdotally that there were similar cases in other counties that were being funded by the State.

We hold that there was competent evidence to support the trial court’s finding:

9. That due to a lack of funding pursuant to State and Federal law said placement is no longer available to the Juvenile.

Thus, this finding is conclusive on appeal. Pineda-Lopez at 589, 566 S.E.2d at 164.

Further, this finding supports the following conclusions of law by the trial court:

1. That the State of North Carolina, Burke County and Foothills Area Programs cannot be compelled to provide services in the nature of a Level 3 placement for the Respondent Juvenile, D.G. who is an undocumented alien.

2. That the Respondent Juvenile has failed to show that the parties named above have willfully failed to comply with the Court’s prior Dispositional Order and that none of the said parties are in contempt.

Change in Dispositional Order

Once the trial court found that there was no available funding for D.G.’s residential sex offender treatment, it had no option but to grant the State’s motion to modify its prior dispositional order. Modifications of dispositional orders are governed by N.C. Gen. Stat. § 7B-2600(a):

Upon motion in the cause or petition, and after notice, the court may conduct a review hearing to determine whether the order of the court is in the best interests of the juvenile, and the court may modify or vacate the order in light of changes in circumstances or the needs of the juvenile.

N.C. Gen. Stat. § 7B-2600(a) (2007).

This statute clearly states that a prior order can be modified or vacated in light of changes in circumstances, and is not tied exclusively to the needs of the juvenile.

The trial court initially ordered residential sex offender treatment based upon erroneous information provided to it at the dispositional hearing. When this was brought to the trial court’s attention, it correctly ruled that it could not compel the provision of the residential sex offender treatment in violation of federal law. Once this decision was reached, the court had no alternative but to modify the dis-positional order. These facts constituted a change in circumstance within the intent and meaning of N.C. Gen. Stat. § 7B-2600(a), and the trial court properly modified the dispositional order.

AFFIRMED.

Judge HUNTER concurs. Judge WYNN dissents in a separate opinion.