In re M.C.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-828
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
IN THE MATTER OF:
M.C. Vance County
No. 08 J 95
Appeal by Juvenile from orders entered 11 January 2013 and
16 January 2013 by Judge J. Henry Banks in District Court, Vance
County. Heard in the Court of Appeals 21 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Daphne D. Edwards, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Hannah Hall, for Juvenile-Appellant.
McGEE, Judge.
Juvenile admitted to felonious breaking and entering on 7
September 2012. Judge J. Henry Banks adjudicated Juvenile
delinquent on 21 September 2012. He ordered a Level 2
disposition, directing that Juvenile be placed on probation
under the supervision of a court counselor for twelve months,
under certain conditions. Judge Banks also ordered that
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Juvenile could be confined on an intermittent basis for up to
fourteen 24-hour periods, “specifically for obtaining new
charges, violating curfew, and/or testing positive to
marijuana.”
The court counselor alleged in a document titled “Motion
for Review on Probation Violation” filed on 9 November 2012 that
Juvenile violated several conditions of his probation. Judge
Banks held a hearing on 30 November 2012, found Juvenile had
“violated the court’s previous order” and continued the matter
to 7 December 2012.
Judge S. Quon Bridges presided over Juvenile’s probation
violation hearing on 7 December 2012 and entered a written
order, finding that Juvenile had violated the conditions of his
probation, continuing Juvenile on probation, and ordering
Juvenile “be placed in secure custody for 6 (six) 24 hour
periods of confinement.”
A hearing was held on 14 December 2012 before Judge
Bridges. However, Juvenile’s attorney was “not available for
court[,]” and Judge Bridges continued the matter to 11 January
2013. He further provided the following conditions: (1) “that
the juvenile shall follow the rules and regulations of his
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father’s home;” and (2) “that the juvenile shall remain at his
father’s residence at all times except to attend school.”
Another hearing was held before Judge Banks on 11 January
2013. He entered a Level 3 disposition and commitment order on
11 January 2013 and an amended Level 3 disposition and
commitment order on 16 January 2013. Juvenile appeals from the
orders entered 11 January 2013 and 16 January 2013.
Juvenile first argues Judge Banks erred by entering a Level
3 disposition and commitment order because, following Judge
Bridges’ 7 December 2012 order, there was no motion for review
filed, citing N.C. Gen. Stat. § 7B-2600 (2013). That statute
reads as follows:
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.G.S. § 7B-2600(a) (emphasis added).
Following Juvenile’s probation violation hearing on 7
December 2012, Judge Bridges found that Juvenile violated
several conditions of his probation and entered the following
order:
1. He missed 46 days from school.
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2. He missed a meeting with the child and
family team at school.
3. He violated his curfew by coming home
after 5:00 pm on several occasions.
4. He missed a meeting with Triumph and only
attended 3 meeting[s] per week instead of 4
on occasion.
5. He tested positive for marijuana the
first week of his probation on one occasion.
However, the Court finds that he should be
continued on probation and given an
opportunity to comply with the terms and
conditions. He be placed in secure custody
for 6 (six) 24 hour periods of confinement.
N.C. Gen. Stat. § 7B-2510(e) (2013) permits the trial
court, upon finding that a juvenile violated conditions of
probation, to enter one of several dispositions, as set forth
below:
If the court, after notice and a hearing,
finds . . . that the juvenile has violated
the conditions of probation set by the
court, the court may continue the original
conditions of probation, modify the
conditions of probation, or, except as
provided in subsection (f) of this section,
order a new disposition at the next higher
level[.]
N.C.G.S. § 7B-2510(e). The written order that Judge Bridges
entered on 7 December 2012 finds Juvenile violated conditions of
probation, and Judge Bridges ordered a continuation of the
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original conditions of probation, one of the dispositions
permitted by N.C.G.S. § 7B-2510, supra.1
N.C.G.S. § 7B-2600(a) requires that a motion in the cause
or a petition be filed in order for a review hearing to be
conducted and a determination to be made as to whether to modify
or vacate a prior dispositional order. No motion in the cause
or petition was filed, as required, that would permit Judge
Banks to enter the 11 January 2013 order or the 16 January 2013
order, both of which modified the 7 December 2012 order of Judge
Bridges. Juvenile has demonstrated that Judge Banks erred in
entering an order on Juvenile’s disposition in the absence of a
motion in the cause or a petition, pursuant to N.C.G.S. § 7B-
2600(a). The 11 January 2013 and 16 January 2013 orders of
Judge Banks must be vacated. In light of our holding on this
issue, we need not reach Juvenile’s remaining arguments.
Vacated.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).
1
The court reporter indicated in the transcript that there were
substantial problems with a microphone on both 7 December 2012
and 11 January 2013. However, neither Juvenile nor the State
argues that any statements relevant to this issue were omitted,
and we are limited in our review to the record before us. See
N.C.R. App. P. 9(a)(1)(e).