Matter of Hughes , 50 N.C. App. 258 ( 1981 )

273 S.E.2d 324 (1981)

In the Matter of Michael Wayne HUGHES, Juvenile.

No. 8025DC590.

Court of Appeals of North Carolina.

January 6, 1981.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Robert L. Hillman, Raleigh, for the State.

Randy D. Duncan, Hickory, for respondent-appellant.

WHICHARD, Judge.

By the first assignment of error argued in respondent's brief, he contends the court erred in committing him to the Division of Youth Services in that he was an "undisciplined" juvenile for whom such commitment was not a statutorily provided dispositional alternative. The initial Juvenile Petition against respondent did charge him with the "undisciplined" behavior of unlawful absence from school. It was for this "status offense" (an offense committed by a juvenile which would not be a crime if committed by an adult) that respondent was initially placed on probation. If commitment to the Division of Youth Services had been grounded on the commission of this offense alone, we would have been compelled to reverse the juvenile court on the grounds that such commitment is not a statutorily permissible dispositional alternative for "undisciplined" behavior. G.S. 7A-648 (Supp.1979).

Respondent was subsequently, however, adjudicated delinquent for two unrelated offenses: first, damage to property from shooting out the windows and screens of a home with an air rifle; and second, stealing the sum of $60.00 from a purse. The juvenile court, in compliance with the stated purpose of the North Carolina Juvenile Code of avoiding commitment of the juvenile to training school if he could be helped through community-level resources, G.S. 7A-646 (Supp.1979), continued respondent's probation in the disposition of both offenses. In so doing the court imposed conditions of probation with which respondent repeatedly refused to comply.

G.S. 7A-658, in pertinent part, provides:

If a juvenile violates the conditions of his probation, he and his parent after notice, may be required to appear before the court and the judge may make any disposition of the matter authorized by this act.

G.S. 7A-658 (Supp.1979) (emphasis supplied). Commitment of a "delinquent" juvenile to the Division of Youth Services for placement in one of its residential facilities is a disposition authorized by the act. G.S. 7A-649(10), -652 (Supp.1979). Therefore, upon finding respondent in violation of the conditions of his probation subsequent to his having been adjudicated delinquent, the juvenile court had the authority to make the commitment which it ordered.

Once respondent was adjudicated delinquent, his probationary status resulted from delinquent behavior rather than merely from the undisciplined behavior upon which it was initially grounded. His commitment to the Division of Youth Services for violation of the conditions of his probation resulting from delinquent behavior was within the ambit of the statutorily permissible dispositional alternatives, rendering this assignment of error without merit.

By the second assignment of error argued in respondent's brief, he contends the court erred by not making findings of fact sufficient to authorize commitment to the Division of Youth Services in that it failed to find that his behavior constituted a threat to persons or property in the community. G.S. 7A-652 requires, as a condition to commitment of a delinquent juvenile to the Division of Youth Services, that the juvenile court find: (1) that the "alternatives to commitment ... in G.S. 7A-649 have been attempted unsuccessfully or are inappropriate," and (2) "that the juvenile's behavior constitutes a threat to persons or property in the community." G.S. 7A-652(a). The court here satisfied the first requirement by finding that respondent had not accepted and continued not to accept residential placement in community-level facilities, and that no other suitable placement in the community appeared to be available. It satisfied the second requirement by finding that respondent "was adjudicated delinquent for injury to real property with an air rifle" and that "adjudication was made that [respondent] had stolen $60.00 from a purse ..."; and by finding from these facts that respondent's "behavior constitutes some threat to persons or property in the community." These findings render this assignment of error without merit.

It is evident that the juvenile court, to no avail, made every effort to comply with the purpose of the North Carolina Juvenile Code by selecting "the least restrictive disposition... that is appropriate to the seriousness of the offense" and by attempting to avoid commitment of the juvenile to training school "if he can be helped through community-level resources." G.S. 7A-646. Only after numerous unsuccessful efforts to deal with the juvenile by other less restrictive dispositional alternatives did the court resort to the most restrictive alternative, namely, commitment to training school. We find no error in the proceedings of the juvenile court or in its ultimate disposition, and the Order appealed from is therefore

Affirmed.

HEDRICK and CLARK, JJ., concur.