In re: D.E.P. ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-838
Filed: 7 February 2017
Mecklenburg County, No. 14 JB 851
IN THE MATTER OF: D.E.P.
Appeal by juvenile from order entered 25 April 2016 by Judge David H.
Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 11
January 2017.
Blass Law, PLLC, by Danielle Blass, for juvenile-appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennie
Wilhelm Hauser, for the State.
ZACHARY, Judge.
The juvenile-appellant, Daniel,1 appeals from a disposition order that
committed him to the Department of Juvenile Justice for placement in a training
school for a minimum of six months and a maximum not to exceed his eighteenth
birthday. On appeal Daniel argues that the trial court erred in its disposition order
by failing to enter findings that reflected its consideration of the factors set out in
N.C. Gen. Stat. § 7B-2501(c), and abused its discretion by entering a Level 3
1 We refer to the juvenile by the pseudonym Daniel in this opinion for ease of reading and to
protect the juvenile’s privacy.
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disposition committing him to training school. For the reasons that follow, we
disagree.
I. Factual and Procedural Background
Daniel was born in 1999 and grew up in Charlotte, North Carolina. On 22
December 2014, the Mecklenburg County Department of Juvenile Justice filed
petitions alleging that Daniel was a delinquent juvenile in that he had committed the
misdemeanor offenses of communicating a threat, second-degree trespass, simple
assault, and assault on a government official. On 20 February 2015, a petition was
filed alleging that Daniel was guilty of simple possession of less than a half ounce of
marijuana. On 6 March and 31 March 2015, petitions were filed alleging that Daniel
had committed the offense of robbery with a dangerous weapon and conspiracy to
commit robbery with a dangerous weapon. Daniel’s father and older brother were
identified in the petition as Daniel’s co-conspirators.
In connection with the juvenile petitions, a juvenile court counselor filed a
report for the trial court’s use. This report described Daniel’s attitude towards
authority figures as “very rude and disrespectful” and stated that Daniel’s mother
was unable to effectively discipline Daniel. At school, Daniel had a “history of
suspensions for aggressive behaviors, being disruptive, insubordinate, and fighting”
and had admitted to skipping school on occasion. Daniel had been diagnosed with
Type 2 diabetes for which he took insulin, as well as ADHD (attention deficit
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hyperactivity disorder) and ODD (oppositional defiant disorder), for which he was
prescribed a psychoactive medication.
On 15 July 2015, a hearing was conducted on the juvenile petitions filed in this
case. Daniel admitted that he had committed the offense of robbery with a dangerous
weapon, and the State dismissed the other petitions. On 23 July 2015, the trial court
entered an order that adjudicated Daniel to be a delinquent juvenile and imposed a
Level 2 disposition, pursuant to N.C. Gen. Stat. § 7B-2508 (2015). Daniel was placed
on juvenile probation for a period of 12 months and was required to comply with a
6:00 p.m. curfew, attend school regularly, and not violate any laws or possess any
controlled substances.
On 1 September 2015, juvenile petitions were filed alleging that on 27 July
2015, just four days after being placed on probation, Daniel committed the offenses
of resisting, delaying, or obstructing a law enforcement officer (when he jumped from
a stolen vehicle), and possession of less than a half ounce of marijuana. Daniel’s court
counselor filed a motion for review alleging that Daniel had violated the terms of his
juvenile probation by committing the offenses alleged in the petitions, by failing to
adhere to the court-imposed curfew, and by being suspended from school for ten days.
At a hearing conducted on 21 October 2015, Daniel admitted to possession of
marijuana and the State dismissed the petition alleging that Daniel had resisted an
officer. The trial court entered an order that continued Daniel on juvenile probation.
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On 8 January 2016, Daniel’s court counselor filed a motion for review, alleging that
Daniel had violated probation by failing to abide by his curfew and by being
suspended from school for ten days. Another motion for review was filed on 2
February 2016, alleging that Daniel had violated his probation by leaving the home
of his grandmother, with whom he had been directed to reside.
On 1 March 2016, the trial court conducted a hearing on the motions for review,
at which Daniel admitted to violating the terms of his probation. The trial court
continued the disposition until 11 April 2016, and entered an order that stated in
relevant part that “[i]f [Daniel] does what he needs to do then he will remain at a
Level 2 disposition[;] if not he will be committed to training school.” On 30 March
2016, a motion for review was filed, alleging that Daniel had violated probation by
skipping school and being suspended from school. Following a dispositional hearing,
the trial court entered an order on 25 April 2016, imposing a Level 3 disposition and
committing Daniel to training school for a period of at least six months until no later
than his 18th birthday. Daniel has appealed to this Court from this order.
II. Standard of Review
On appeal, Daniel does not dispute the validity of his adjudication as a
delinquent juvenile or dispute the fact that he violated the terms of his probation.
Nor does Daniel challenge the trial court’s statutory authority pursuant to N.C. Gen.
Stat. § 7B-2510(e) (2015) to impose a Level 3 disposition committing him to training
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school upon Daniel’s admission to violating his probation. Daniel argues instead that
the trial court failed to comply with the statutory requirements for entry of a
dispositional order and that the trial court’s choice of disposition constituted an abuse
of the court’s discretion. Accordingly, we first review the standards to which a trial
court must adhere in fashioning an appropriate disposition for a delinquent juvenile.
N.C. Gen. Stat. § 7B-2500 (2015) provides that:
The purpose of dispositions in juvenile actions is to design
an appropriate plan to meet the needs of the juvenile and
to achieve the objectives of the State in exercising
jurisdiction, including the protection of the public. The
court should develop a disposition in each case that:
(1) Promotes public safety;
(2) Emphasizes accountability and responsibility of both
the parent, guardian, or custodian and the juvenile for the
juvenile’s conduct; and
(3) Provides the appropriate consequences, treatment,
training, and rehabilitation to assist the juvenile toward
becoming a nonoffending, responsible, and productive
member of the community.
The three levels of disposition for a delinquent juvenile are set out in N.C. Gen.
Stat. § 7B-2508, which correlates the permissible disposition level to the offense for
which the juvenile is being adjudicated delinquent and his prior history of juvenile
adjudications. Daniel was initially given a Level 2-Intermediate disposition. Upon
his repeated violation of the terms of probation, the trial court was authorized under
N.C. Gen. Stat. § 7B-2510(e) to “order a new disposition at the next higher level on
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the disposition chart[,]” in this case a disposition under Level 3-Commitment. Daniel
does not dispute that the disposition in the present case represented a legally valid
choice under the relevant statutes.
The standard of review in such cases is well established: “In instances
involving permissive statutory language, such as the language contained in N.C. Gen.
Stat. § 7B-2510(e), the validity of the trial court’s actual dispositional decision is
reviewed on appeal using an abuse of discretion standard of review.” In re Z.T.W.,
238 N.C. App. 365, 370, 767 S.E.2d 660, 664-65 (2014) (citation omitted). “[A]n abuse
of discretion is established only upon a showing that a court’s actions are manifestly
unsupported by reason, or so arbitrary that [they] could not have been the result of a
reasoned decision.” In re E.S., 191 N.C. App. 568, 573, 663 S.E.2d 475, 478 (2008)
(internal quotation marks and citation omitted). “[A] trial court’s dispositional
decision should be upheld on appeal unless the decision in question could not have
been a reasoned one.” Z.T.W., 238 N.C. App. at 370, 767 S.E.2d at 665.
III. Sufficiency of Findings of Fact in the Dispositional Order
Daniel argues first that the trial court erred by failing to include appropriate
findings of fact in the dispositional order. N.C. Gen. Stat. § 7B-2501(c) (2015)
provides that, in “choosing among statutorily permissible dispositions,” the trial court
“shall select a disposition that is designed to protect the public and to meet the needs
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and best interests of the juvenile” and that the trial court’s selection should be 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
as indicated by a risk and needs assessment.
N.C. Gen. Stat. § 7B-2512 (2015) provides in relevant part that the
“dispositional order shall be in writing and shall contain appropriate findings of fact
and conclusions of law.” On appeal, Daniel asserts that in order for a trial court’s
findings in a disposition order to constitute the “appropriate” findings of fact required
by N.C. Gen. Stat. § 7B-2512, these findings must reference the specific factors listed
in N.C. Gen. Stat. § 7B-2501(c) and must document the trial court’s consideration of
each of these factors. On the other hand, the State argues on appeal that “neither
statute requires the trial court to make written findings of fact for each of the five
considerations under [N.C. Gen. Stat. §] 7B-2501(c).” After careful review, we agree
with the State.
The position taken by Daniel on appeal is based upon the discussion in some
of our prior cases concerning the holding of In re Ferrell, 162 N.C. App. 175, 589
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S.E.2d 894 (2004). However, upon thorough examination, it is apparent that the
standard posited rests upon the mischaracterization of Ferrell and subsequent
repetition of this error.
As discussed above, N.C. Gen. Stat. § 7B-2501(c) directs the court to consider
specific factors in its determination of the appropriate level or type of disposition in
a juvenile delinquency case. In Ferrell, the juvenile appealed from a specific provision
of the disposition order that removed him from the custody of his mother and placed
him in the custody of his father. Although the juvenile did not challenge the
dispositional level or type of disposition chosen by the trial court, the Ferrell opinion
observed that a court’s discretion to fashion an appropriate disposition is not
unlimited, noting the statutory parameters for selection of a disposition level that are
set out in N.C. Gen. Stat. § 7B-2501(c). The opinion in Ferrell also quoted the
requirement in N.C. Gen. Stat. § 7B-2512 that the court’s order “shall be in writing
and shall contain appropriate findings of fact and conclusions of law.” (emphasis in
original). We held that “the findings of fact in the dispositional order do not support
the trial court’s decision to transfer custody of the juvenile from the mother to the
father” and set aside that part of the disposition order. Ferrell, 162 N.C. App. at 177,
589 S.E.2d at 895.
Significantly, the issue addressed by our opinion in Ferrell was confined to the
adequacy of the trial court’s findings to support its transfer of custody from the child’s
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mother to his father. The case did not involve any consideration of the court’s
determination of the appropriate disposition level, which was not implicated in any
manner by the court’s custody decision. Our opinion in Ferrell did not discuss the
extent, if any, to which a disposition order must reference the factors set out in N.C.
Gen. Stat. § 7B-2501 in order to justify the court’s selection of a particular disposition.
Moreover, the provision of the disposition order that was at issue in Ferrell - whether
the juvenile’s custody should be with his mother or with his father - is entirely
separate from the determination of an appropriate disposition level. Thus, Ferrell did
not hold that it is reversible error for a trial court to enter a disposition order that
fails to include findings that demonstrate its consideration of the factors in N.C. Gen.
Stat. § 7B-2501. In fact, Ferrell said nothing at all on this subject.
In In re V.M., 211 N.C. App. 389, 391-92, 712 S.E.2d 213, 215 (2011), this Court
stated as the basis for its ruling that “we have previously 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[,]” and cited
Ferrell as authority for this statement. However, Ferrell did not address the degree
to which a court’s findings must specifically reflect consideration of the factors listed
in N.C. Gen. Stat. § 7B-2501(c), and did not set out any rule regarding this issue.
Nonetheless, V.M.’s mischaracterization of Ferrell was repeated in several later
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cases. For example, in In re J.J., 216 N.C. App. 366, 375, 717 S.E.2d 59, 65 (2011),
the opinion quoted V.M. as follows:
[T]he trial court was required to make written findings of
fact in its dispositional order. “[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 V.M., [211]
N.C. App. [389, 392], 712 S.E.2d 213, 215 (2011). Thus, the
trial court erred in failing to include the requisite findings
of fact in its dispositional order. Accordingly, we must
vacate the trial court’s dispositional order and remand the
matter to the trial court to make the statutorily mandated
findings of fact in the juvenile’s written dispositional order.
See also, e.g., In re K.C., 226 N.C. App. 452, 462, 742 S.E.2d 239, 246 (2013) (“We
have interpreted [§ 7B-2512] to require the juvenile court ‘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. 389, 391,
712 S.E.2d 213, 215 (2011)”), and In re G.C., 230 N.C. App. 511, 520, 750 S.E.2d 548,
554 (2013) (“in Ferrell, the trial court’s findings of fact were deemed to be insufficient
because they did not fully address the factors laid out in § 7B-2501”).
It is axiomatic that “[w]here a panel of the Court of Appeals has decided the
same issue, albeit in a different case, a subsequent panel of the same court is bound
by that precedent, unless it has been overturned by a higher court.” In re Appeal from
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). However, the opinion in
Ferrell did not arrive at a determination or “decide” the issue of a trial court’s duty to
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include findings in its disposition order that match the factors in N.C. Gen. Stat. §
7B-2501. Nor did V.M. analyze or decide this issue; rather, the opinion merely
referenced an erroneous characterization of the earlier opinion in Ferrell. As a result,
our clarification of the actual holding of the Ferrell opinion does not constitute
“overruling” Ferrell or any of the later cases that cited Ferrell.
The requirements for a dispositional order are governed by N.C. Gen. Stat. §
7B-2512, which states in relevant part that:
The dispositional order shall be in writing and shall
contain appropriate findings of fact and conclusions of law.
The court shall state with particularity, both orally and in
the written order of disposition, the precise terms of the
disposition including the kind, duration, and the person
who is responsible for carrying out the disposition and the
person or agency in whom custody is vested.
Upon careful review of the statutory language and our prior jurisprudence, we
find no support for a conclusion that in every case the “appropriate” findings of fact
must make reference to all of the factors listed in N.C. Gen. Stat. § 7B-2501(c),
including those factors that were irrelevant to the case or in regard to which no
evidence was introduced. However, because Daniel’s sole challenge to the sufficiency
of the trial court’s findings of fact is that they fail to demonstrate consideration of the
factors in N.C. Gen. Stat. § 7B-2501(c), we have reviewed this argument and conclude
that the court’s findings indicate its consideration of these factors.
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The trial court’s findings of fact are contained in an attachment to its
dispositional order that is titled “Findings of Fact for [Daniel] Level 3 Commitment
Order.” This attachment states that:
The juvenile was adjudicated on a serious charge of
Robbery with a Dangerous weapon on July 16th, 2015, at a
level 2. Eleven days later, he was charged with
misdemeanor possession of marijuana, and was
adjudicated on that charge on October 21st, 2015. The
juvenile was originally compliant with the probationary
term during October and November of 2015, engaging in
the GAP program and doing his community service while
residing with his grandmother. Starting in December, the
juvenile [began] violating curfew orders, leaving his home
all night on December 15th, and eventually leaving his
grandmother’s home permanently on December 29th, as
well as moving in with his father who was a co-defendant
on the underlying RWDW, in violation of his court order.
He was also suspended 10 days from school for fighting.
The juvenile admitted an MFR relating to these violations
on March 1st 2016, and disposition was continued until
April in order to give the juvenile one last opportunity to
comply with the court orders. The court’s orders required
that the juvenile was placed back into the grandmother’s
home with his mother, the juvenile was to obtain a
substance abuse assessment at McLeod, not be suspended
from school or be late to school unexcused, cooperate with
YFS, complete his community service hours, and cooperate
with Access treatment. On March 3rd, the juvenile was
suspended from school for fighting with another student.
On March 22nd, the juvenile was absent from his second
block class unexcused. An MFR was filed on 3/30/16 for
these violations, and the juvenile admitted the MFR on
4/18/2016. The juvenile had also not received substance
treatment at McLeod since the previous court date. While
the juvenile did complete his community service hours and
the GAP program, due to the serious nature of the
underlying offense adjudicated, and the continued
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noncompliance with court orders regarding school, curfew,
substance abuse treatment, and having contact with his
father, the Court finds that a YDC is the most appropriate
structure for the juvenile and the community’s needs.
As discussed above, the factors upon which the trial court is directed to base
its determination of the appropriate dispositional level include (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 as indicated by a risk and needs assessment. We conclude that the
trial court’s findings of fact demonstrate its consideration of these criteria.
The parties do not dispute that robbery with a dangerous weapon is a serious
offense, and the trial court found that Daniel “was adjudicated on a serious charge of
Robbery with a Dangerous weapon,” thereby demonstrating the court’s consideration
of the “seriousness of the offense.” The trial court’s findings set out in some detail
Daniel’s repeated failure to comply with the terms of his probation, despite being
given several opportunities to remain on probation. These findings establish the
court’s consideration of the “need to hold the juvenile accountable.” The trial court’s
consideration of the need to protect the public is illustrated by its findings that Daniel
was adjudicated for committing an armed robbery and that he has been suspended
from school for fighting.
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We next examine the extent to which the trial court’s findings demonstrate its
consideration of Daniel’s “degree of culpability.” Upon Daniel’s adjudication as
delinquent, the trial court had the authority to impose either a disposition Level 2-
Intermediate or 3-Commitment. N.C. Gen. Stat. § 7B-2508(f) (2015). Daniel stresses
on appeal that his co-defendant in this offense was his father. We presume that the
trial court considered Daniel’s reduced level of culpability when it imposed a Level 2
disposition. The disposition order at issue on appeal is, however, based primarily
upon Daniel’s repeated violations of probation rather than upon the offense for which
Daniel was originally adjudicated delinquent. Accordingly, it is Daniel’s “degree of
culpability” for his probation violations that is most relevant, rather than his role in
the robbery. The court’s findings set out various ways in which Daniel violated
probation, including possessing marijuana, violating curfew, missing school, and
being suspended from school. These violations are based upon Daniel’s own actions
and do not suggest that some other person was partly responsible for Daniel’s
violating probation. As a result, these findings indicate that the trial court considered
the degree to which Daniel was culpable as regards the violations of the terms of his
probation. Finally, the dispositional order expressly references Daniel’s failure to
obtain treatment for substance abuse, thus indicating the court’s consideration of
Daniel’s rehabilitative and treatment needs. We conclude that the trial court’s
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findings of fact adequately demonstrate its consideration of the factors set out in N.C.
Gen. Stat. § 7B-2501(c).
We have considered Daniel’s appellate argument urging us to reach a contrary
result. We conclude, however, that Daniel is essentially contending that the trial
court should have made different findings, based on Daniel’s assessment of the
evidence, or that the trial court should have weighed the evidence differently. “It is,
however, the ‘duty of the trial judge to weigh and consider all competent evidence,
and pass upon the credibility of the witnesses, the weight to be given their testimony
and the reasonable inferences to be drawn therefrom.’ ‘It is not the function of this
Court to reweigh the evidence on appeal.’ ” Burger v. Smith, __ N.C. App. __, __, 776
S.E.2d 886, 896 (2015) (quoting Sauls v. Sauls, __ N.C. App. __, __, 763 S.E.2d 328,
330 (2014) (internal quotations omitted)).
We hold that the trial court was not required by N.C. Gen. Stat. § 7B-2512 to
make findings of fact that expressly tracked each of the statutory factors listed in
N.C. Gen. Stat. § 7B-2501(c). However, because this is the sole basis of Daniel’s
challenge to the trial court’s findings, we have carefully reviewed the dispositional
order and conclude that the order does, in fact, demonstrate the court’s consideration
of the statutory factors. Given that Daniel has not challenged the court’s findings on
any other basis, we are not required to further define the requirements for a court’s
findings in a dispositional order, beyond the general requirement of N.C. Gen. Stat.
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§ 7B-2512 that the findings be “appropriate.” In this regard, we note that N.C. Gen.
Stat. § 1A-1 Rule, 52(a)(1) (2015) provides in relevant part that in “all actions tried
upon the facts without a jury” the trial court “shall find the facts specially and state
separately its conclusions of law thereon and direct the entry of the appropriate
judgment.” Thus, in every case in which a trial court sits without a jury, it must enter
“appropriate” findings of fact. “What the evidence does in fact show is a matter the
trial court is to resolve, and its determination should be stated in appropriate and
adequate findings of fact.” Farmers Bank v. Distributors, 307 N.C. 342, 352, 298
S.E.2d 357, 363 (1983).
Trial Court’s Exercise of Discretion
Daniel also contends that the trial court abused its discretion by imposing a
Level 3 disposition. We conclude that Daniel has failed to establish that the trial
court abused its discretion.
It has long been the rule that:
The abuse of discretion standard of review is applied to
those decisions which necessarily require the exercise of
judgment. The test for abuse of discretion is whether a
decision “is manifestly unsupported by reason,” or “so
arbitrary that it could not have been the result of a
reasoned decision.” The intended operation of the test may
be seen in light of the purpose of the reviewing court.
Because the reviewing court does not in the first instance
make the judgment, the purpose of the reviewing court is
not to substitute its judgment in place of the decision
maker. Rather, the reviewing court sits only to insure that
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the decision could, in light of the factual context in which
it is made, be the product of reason.
Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986) (quoting
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985), and State v. Wilson,
313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985)).
On appeal, Daniel acknowledges his repeated violations of probation, but
directs our attention to evidence in the record tending to show that Daniel faced
difficult family circumstances and that he successfully completed some of the
requirements of probation. The existence of such evidence, although it might have
supported a decision by the trial court to impose a Level 2 disposition, does not
support a conclusion that the trial court’s decision to impose a Level 3 disposition was
unreasonable. As discussed above, during the eight months following Daniel’s
placement on juvenile probation, his court counselor filed motions for review alleging
violations of probation for, among other things, possession of marijuana, fighting at
school, failing to attend school, failing to cooperate with his court counselor, failing to
comply with his curfew, and absconding from the home where he had been ordered to
reside. Despite Daniel’s repeated probation violations, the trial court continued him
on probation several times. The last time that Daniel was in court to address an
alleged violation of probation, the trial court continued disposition for a month and
entered an order expressly warning that if Daniel failed to comply with the terms of
his probation, he would be sent to training school. However, Daniel continued to
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violate his probation even after being given another chance to continue on a Level 2
disposition. Under these circumstances, we cannot conclude that the trial court’s
decision to impose a Level 3 disposition was manifestly unsupported by reason.
For the reasons discussed above, we conclude that the trial court did not err in
its disposition order, and that its order is hereby
AFFIRMED.
Judges ELMORE and DILLON concur.
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