Matter of Wharton

290 S.E.2d 688 (1982)

In the Matter of Phillip WHARTON, Juvenile.

No. 9PA82.

Supreme Court of North Carolina.

May 4, 1982.

Margaret A. Dudley, Deputy Guilford County Atty., Greensboro, for Guilford County and Guilford County Department of Social Services.

Booth, Harrington, Johns & Campbell by A. Frank Johns, Greensboro, for Phillip Wharton, Juvenile.

BRITT, Justice.

I.

First, we address the procedural aspects of this case. Relying on our decision in In Re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981), the Court of Appeals properly held that Guilford County had no right to appeal from the order dated 23 October 1980 and filed 3 November 1980. We reaffirm our decision in Brownlee with respect to a county's right to appeal from orders entered in a juvenile proceeding.

Nevertheless, as we said in Brownlee, this court is authorized to issue "any remedial writs necessary to give it general supervision and control over the proceedings of the other courts" of the state. North Carolina Constitution, Article IV, Section 12(1). We also said in Brownlee that

Under exceptional circumstances this court will exercise power under this section of the constitution in order to consider questions which are not presented according to our rules or procedure; State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975); and this court will not hesitate to exercise its general supervisory authority when necessary to promote the expeditious administration of justice. Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439 (1958); Park Terrace, Inc., v. Phoenix Indemnity Co., 243 N.C. 595, 91 S.E.2d 584 (1956).

301 N.C. at 548.

Due to the far reaching effect of Judge Pfaff's orders on Guilford County and the director of its Department of Social Services, we consider this case to be of sufficient importance for us to invoke our supervisory authority. We have therefore allowed Guilford County's petition for discretionary review. We now treat the papers filed in this court on behalf of Guilford County and Frank Wilson as a petition for a writ of certiorari to review the orders of the trial court, and as a motion to bypass the Court of Appeals, and allow the petition and motion.

II.

Before passing upon the validity of the 3 November 1980 order adjudging Frank Wilson, Director of the Department of Social Services for Guilford County, in contempt of court, we must consider the validity of the portion of the trial court's order entered 27 August 1980 upon which the 3 November 1980 order was predicated. In In Re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981), Justice Huskins, speaking for this court, said:

Disobedience of an order made without, or in excess of, jurisdiction is not punishable as contempt. State v. Black, 232 N.C. 154, 59 S.E.2d 621 (1950); see also 17 Am.Jur., 2d, Contempt, § 42, and cases cited in footnote 9; 17 C.J.S., Contempt § 14.

301 N.C. at 633.

The key provision of the 27 August 1980 order which is the basis for the trial court adjudging Mr. Wilson to be in contempt provides as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Guilford County Department of Social Services shall in conjunction with the Mental Health, Mental Retardation and Substance Abuse Authority implement the creation of a foster home to be found by the County in which appropriate staff are placed and the juvenile and other juveniles like him could be permanently domiciled for program treatment and delivery of services.

We hold that the trial court exceeded its authority in entering the quoted provision of the 27 August 1980 order. Hence, the 3 November 1980 order adjudging Wilson in contempt of court is invalid and must be vacated.

In its dispositional order of 27 August 1980 the trial court found that the juvenile was incompetent to stand trial, and that G.S. 7A-646 and 647 provided for dispositional alternatives for a juvenile who had been found to be mentally ill or mentally retarded and in need of medical, surgical, psychiatric, psychological or other treatment. It is clear that the court relied on those statutes for its authority to enter the order in question.

G.S. 7A-646 provides:

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. If possible, the initial approach should involve working with the juvenile and his family in their own home so that the appropriate community resources may be involved in care, supervision, and treatment according to the needs of the juvenile. Thus, the judge should arrange for appropriate community-level services to be provided to the juvenile and his family in order to strengthen the home situation.

In choosing among statutorily permissible dispositions for a delinquent juvenile, the judge shall select the least restrictive disposition both in terms of kind and duration, that is appropriate to the seriousness of the offense, the degree of culpability indicated by the circumstances of the particular case and the age and prior record of the juvenile. A juvenile should not be committed to training school or to any other institution if he can be helped through community-level resources.

G.S. 7A-647 provides:

The following alternatives for disposition shall be available to any judge exercising jurisdiction, and the judge may combine any of the applicable alternatives when he finds such disposition to be in the best interest of the juvenile:

(1) The judge may dismiss the case, or continue the case in order to allow the juvenile, parent, or others to take appropriate action.

(2) In the case of any juvenile who needs more adequate care or supervision or who needs placement, the judge may:

a. Require that he be supervised in his own home by the Department of Social Services in his county, a court counselor or other personnel as may be available to the court, subject to conditions applicable to the parent or the juvenile as the judge may specify; or

b. Place him in the custody of a parent, relative, private agency offering placement services, or some other suitable person; or

c. Place him in the custody of the Department of Social Services in the county of his residence, or in the case of a juvenile who has legal residence outside the State, in the physical custody of the Department of Social Services in the county where he is found so that agency may return the juvenile to the responsible authorities in his home state. Any department of social services in whose custody or physical custody a juvenile is placed shall have the authority to arrange for and provide medical care as needed for such juvenile.

(3) In any case, the judge may order that the juvenile be examined by a physician, psychiatrist, psychologist or other qualified expert as may be needed for the judge to determine the needs of the juvenile. If the judge finds the juvenile to be in need of medical, surgical, psychiatric, psychological or other treatment, he shall allow the parent or other responsible persons to arrange for care. If the parent declines or is unable to make necessary arrangements, the judge may order the needed treatment, surgery or care, and the judge may order the parent to pay the cost of such care pursuant to G.S. 7A-650. If the judge finds the parent is unable to pay the cost of care, the judge may charge the cost to the county. If the judge believes, or if there is evidence presented to the effect that the juvenile is mentally ill or is mentally retarded the judge shall refer him to the area mental health, mental retardation, and substance abuse director or local mental health director for appropriate action. A juvenile shall not be committed directly to a State hospital or mental retardation center; and orders purporting to commit a juvenile directly to a State hospital or mental retardation center except for an examination to determine capacity to proceed shall be void and of no effect. The area mental health, mental retardation, and substance abuse director or local mental health director shall be responsible for arranging an interdisciplinary evaluation of the juvenile and mobilizing resources to meet his needs. If institutionalization is determined to be the best service for the juvenile, admission shall be with the voluntary consent of the parent or guardian. If the parent, guardian, or custodian refuses to consent to a mental hospital or retardation center admission after such institutionalization is recommended by the area mental health, mental retardation, and substance abuse health director, the signature and consent of the judge may be substituted for that purpose. In all cases in which a regional mental hospital refuses admission to a juvenile referred for admission by a judge and an area mental health, mental retardation, and substance abuse director or discharges a juvenile previously admitted on court referral prior to completion of his treatment, the hospital shall submit to the judge a written report setting out the reasons for denial of admission or discharge and setting out the juvenile's diagnosis, indications of mental illness, indications of need for treatment, and a statement as to the location of any facility known to have a treatment program for the juvenile in question.

We find nothing in the quoted statutes which authorizes the district court to require a County Department of Social Services, either by itself or in conjunction with another agency, to "implement the creation of a foster home to be found by the County" with appropriate staff, wherein a juvenile and others like him might be "permanently domiciled for program treatment and delivery of services." In addition to the requirements placed on the Director of Social Services, the order also appears to require the county to "find" a suitable house in which the juvenile and the treatment staff could be "permanently domiciled." We find no authority for this action.

It is possible that the trial judge felt that the first sentence of G.S. 7A-646 provided him with the authority to enter the challenged portion of the order in question. This sentence provides that "[t]he 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." We agree that this sentence affords the court considerable flexibility "to design an appropriate plan to meet the needs of the juvenile." However, we do not think this sentence authorizes the court, as it did in this case, to direct a county or any of its agencies to spend large sums of money in the acquisition of real estate, either by purchase or lease, in the equipping and furnishing of the property, and in employing personnel in order to carry out a plan that the court feels would be appropriate to meet the needs of a particular juvenile and others like him. Among other things, we can envision serious budgeting problems that counties and their agencies would encounter if the district courts had this authority.

We have also reviewed other statutes which might possibly provide the court with the authority it attempted to exercise in this instance. We are unable to find that authority. G.S. 7A-648 is entitled "Dispositional alternatives for delinquent or undisciplined juvenile" and G.S. 7A-649 is entitled "Dispositional alternatives for delinquent juvenile." Neither of these statutes vests the court with the authority in question.

While matters implied by the language of statutes must be given effect to the same extent as matters specifically expressed, Iredell County Board of Education v. Dickson, 235 N.C. 359, 70 S.E.2d 14 (1952), the court may not, under the guise of judicial interpretation, interpolate provisions which are lacking. Board of Education v. Wilson, 215 N.C. 216, 1 S.E.2d 544 (1939); 12 Strong's N.C. Index, 3d, Statutes, § 5.

We can appreciate the great problems district court judges are having in deciding what to do with certain juveniles. Judge Pfaff is to be commended for seeking cooperation with the Department of Social Services and other agencies in trying to bring into existence facilities and programs that would best serve the needs of Phillip and others like him. But there is a limit to what the court can do by fiat.

For the reasons stated, that part of the Court of Appeals' decision dismissing Guilford County's appeal from the order entered 3 November 1980 is vacated, and said order adjudging Frank Wilson in contempt of court and ordering him to pay a fine and do other things is

Reversed.