In Re Walker , 282 N.C. 28 ( 1972 )

Chief Justice Bobbitt

dissenting.

Valerie Lenise Walker, who was born April 14, 1957, appeals from an order entered October 27, 1971, which, based on a finding that Valerie was a delinquent child, committed her to the North Carolina Board of Juvenile Correction, to be and remain in the custody and under the control and supervision of the officials thereof until discharged in accordance with law. The basis for the finding that Valerie was a “delinquent child” was that she had violated the conditions of probation set forth in an order of August 19, 1971, which adjudged that Valerie was an “undisciplined child.”

The order of August 19, 1971, had been entered by Judge Gentry after a hearing on August 17, 1971, on a petition filed by Mrs. Katherine Walker, Valerie’s mother, which asserted, in the phraseology of G.S. 7A-278(5), that Valerie was an “undisciplined child.” This order recites that Valerie, Mrs. Walker, and Mrs. Jones, Court Counselor, were present for the hearing. The record before us does not show what evidence was then heard. Valerie was not represented by counsel at this hearing on August 17th.

On September 21,1971, a petition filed by Mrs. Jones, Court Counselor, asserted that Valerie “ha[d] violated Conditions No. 1, 2, and 3 of the probation order dated August 19, 1971.” Judge Gentry found that Valerie was an indigent person and appointed the Public Defender to represent her.

In Valerie’s behalf, the Public Defender moved that the order dated August 19, 1971, be vacated; that Valerie be given a plenary hearing on the allegations contained in the petition filed August-2, 1971; and that she be provided counsel to represent her at such hearing. Exception was taken to the court’s denial of this motion.

Thereafter, the court heard testimony relating to Valerie’s conduct subsequent to August 19th. An assistant solicitor offered the testimony of Mrs. Walker, Valerie’s mother, of Mr. Howard King, Assistant Superintendent of the Junior High School which Valerie attended, and of “the Probation Officer.” Valerie alone testified in her own behalf.

For present purposes, I accept as valid the conditions of probation and the sufficiency of the evidence to support Judge Gentry’s findings that Valerie’s conduct subsequent to August 19th was in violation of the conditions of her probation.

The applicable statutory provisions quoted below appear in G.S. Volume IB, Replacement 1969.

G.S. 7A-278(5) provides: “‘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-278 (2) provides: “ ‘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.” (Our italics.)

G.S. 7A-285 includes the following: “The juvenile hearing shall be a simple judicial process designed to adjudicate the existence or nonexistence of any of the conditions defined by G.S. 7A-278 (2) through (5) which have been alleged to exist, and to make an appropriate disposition to achieve the purposes of this article. In the adjudication part of the hearing, the judge shall find the facts and shall protect the rights of the child and his parents in order to assure due process of law, including the right to written notice of the facts alleged in the petition, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. In cases where the petition alleges that a child is delinquent or undisciplined and where the child may be committed to a State institution, the child shall have a right to assigned counsel as provided by law in cases of indigency.” (Our italics.)

Valerie was found delinquent and committed solely on the ground she had violated certain of the probation conditions imposed when she was adjudicated an “undisciplined child” on August 19th. The adjudication that she was an “undisciplined child” was absolutely essential to a valid commitment for violation of probation conditions. The Court holds that she was entitled to assigned counsel only at the final hearing to determine whether the probation conditions had been violated. In my opinion, she was equally entitled to assigned counsel at the earlier hearing to determine whether she should be adjudged an “undisciplined child.”

Here a fourteen-year-old girl was brought before the juvenile court upon the complaint of her mother. Absent counsel, she stood alone before the court. In addition to the statutory requirement, it is my opinion that due process required that counsel be assigned to represent her at any hearing which might result in an adjudication prejudicial to her.'

For the reasons indicated, I would reverse the decision of the Court of Appeals, vacate Judge Gentry’s order of October 27, 1971, and remand the cause with direction that a plenary hearing be conducted when Yalerie is represented by counsel for de nono consideration and determination of the charge in the original petition that she is an “undisciplined child.”

Justice Sharp joins in this dissenting opinion.