IN THE MATTER OF: REMONE ROBINSON
No. COA98-165
(Filed 19 January 1999)
1. Juveniles--transfer of case--disposition
The trial court did not err in proceedings on juvenile
petitions by refusing to change the venue of the dispositional
hearing to the District of Columbia where the juvenile was in the
custody of his mother, who resided in the District of Columbia,
but was temporarily living with his uncle in Catawba County,
North Carolina. There is no definition of the word “reside” in
N.C.G.S. § 7A-558 and “residence” at common law meant a person's
actual place of abode, whether permanent or temporary. Even if
the juvenile resided outside the State of North Carolina,
N.C.G.S. § 7A-558 refers to the transfer of juvenile cases to
another district within North Carolina and there is no statutory
provision requiring the transfer of a juvenile delinquency
proceeding to a foreign jurisdiction for disposition.
2. Juveniles--commitment--alternatives--findings insufficient
A juvenile order of commitment was remanded for a new
dispositional hearing where the court counselor merely stated
that the juvenile “probably” would not be accepted into
alternative placements and there was no evidence of any attempts
to investigate alternatives to commitment. Appeal by juvenile from Juvenile Disposition and Commitment
Order filed 17 December 1997 by Judge Timothy S. Kincaid in
Catawba County District Court. Heard in the Court of Appeals 6
October 1998.
Attorney General Michael F. Easley, by Assistant Attorney
General Robin W. Smith, for the State.
Daniel R. Green, Jr. and Gregory D. Huffman, for juvenile-
appellant.
GREENE, Judge.
Remone Robinson (the Juvenile) appeals from a Juvenile
Disposition and Commitment Order entered by the trial court on 17
December 1997.
On 8 December 1997, six juvenile petitions alleging
delinquency were issued against the Juvenile, a fourteen year old
visiting his uncle in Catawba County, North Carolina. He was in
the custody of his mother, who resided in the District of
Columbia. The Juvenile was alleged to have been in possession of
alcoholic beverages, in possession of cocaine, in possession of
stolen property, in possession of a hand gun, and resisting
arrest. At the adjudicatory hearing, the Juvenile admitted to
possession of stolen property and resisting arrest. The other
charges were dismissed by the district attorney. After theadjudication, the Juvenile moved to change venue of the
dispositional hearing to the District of Columbia on the grounds
that he was a resident there. This motion was denied and the
trial court proceeded with the dispositional hearing. The
Juvenile's attorney argued that because this was the Juvenile's
first juvenile disposition and because no alternatives to
commitment had been attempted, commitment to the Division of
Youth Services was not appropriate. A social worker testified
that "at this time nor in the foreseeable future do we have any
resources for placement of this young man to be anywhere near
appropriate." The juvenile court counselor testified that
alternative placements "probably [will] not accept [the
Juvenile]." With respect to two specific alternative placements
suggested by the Juvenile's attorney, the social worker stated:
"I can guarantee that he would not be accepted at either, or
deemed appropriate for either program."
The trial court, in committing the Juvenile to the Division
of Youth Services, found he was a resident of Catawba County,
would be a "threat to persons or property in the community," and
alternatives to commitment "have been attempted unsuccessfully or
were considered and found to be inappropriate."
_____________________________
The issues presented are whether: (I) the Juvenile "resides"in Catawba County; and (II) there is sufficient evidence in this
record to support the finding that alternatives to Division of
Youth Services commitment were inappropriate.
I
[1]On the motion of any juvenile, the trial court "shall
transfer the proceeding to the court in the district where the
juvenile resides for disposition." N.C.G.S. § 7A-558(a)(3)
(1995). There is no dispute in this case that the trial court
had jurisdiction to
adjudicate the petitions. N.C.G.S. § 7A-523(a) (1995) (district court has exclusive jurisdiction over any
juvenile alleged to be delinquent); N.C.G.S. § 7A-558(a) (1995)
("A proceeding in which a juvenile is alleged to be delinquent .
. . shall be commenced and adjudicated in the district in which
the offense is alleged to have occurred."). Instead, the
Juvenile argues he "resides" in the District of Columbia, and
therefore the trial court was required to transfer his case to
the District of Columbia for disposition. We disagree.
As there is no definition of the word "reside" in section
7A-558, and because the word is clear and unambiguous, we are
required to give the word its plain and definite meaning.
See
Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 479,
164 S.E.2d 2, 6 (1968). Residence, at common law, had reference
to "a person's actual place of abode, whether permanent or
temporary."
Sheffield v. Walker, 231 N.C. 556, 559, 58 S.E.2d
356, 359 (1950).
In this case, all the evidence shows that the Juvenile was
in the custody of his mother, who lived in the District of
Columbia, and, at the time of the delinquent offenses, he was
temporarily living with his uncle in Catawba County, North
Carolina. Thus, for the purposes of section 7A-558, the Juvenile
resided in Catawba County at the time of the offenses and the
trial court correctly proceeded with disposition in that
district.
In any event, even if we had determined that the Juvenile
resided outside the State of North Carolina, we do not read
section 7A-558 as mandating that the trial court transfer the disposition of a juvenile delinquency proceeding to a foreign
jurisdiction. Section 7A-558 is more properly construed to have
reference to the transfer of such cases to another district
within this State. There is no statutory provision requiring the
transfer of a juvenile delinquency proceeding, properly filed in
this State, to a foreign jurisdiction for disposition.
(See footnote 1)
II
[2]There is agreement among the parties to this appeal that
a commitment to the Division of Youth Services can occur only if
the alternatives to commitment listed in sections 7A-647, 7A-648,
and 7A-649 "have been attempted unsuccessfully or were considered
and found to be inappropriate." N.C.G.S. § 7A-652(a) (Supp.
1997). The trial court found these alternatives "were considered
and found to be inappropriate." This finding, however, to be
sustained, must be supported by evidence in the record. N.C.G.S.
§ 7A-651(e) (Supp. 1997) (findings must be supported by
"substantial evidence in the record that the judge . . . explored
and exhausted or considered inappropriate" the community
resources needed to meet the needs of the juvenile);
In re
Bullabough, 89 N.C. App. 171, 184, 365 S.E.2d 642, 649 (1988).
The trial court "ha[s] an affirmative obligation to inquire into
and to seriously consider the merits of alternative
dispositions."
In re Groves, 93 N.C. App. 34, 39, 376 S.E.2d 481, 484 (1989) (rejecting as inadequate the court counselor's
testimony that "[w]e don't have a Drug Rehabilitation Program").
In this case, the Juvenile contends the evidence does not
support the trial court's finding, and we agree. There simply is
no evidence that any actual attempts to investigate alternatives
to commitment were made. The court counselor merely stated that
the Juvenile "probably" would not be accepted into alternative
placements. Accordingly, we must vacate the order of commitment
and remand for a new dispositional hearing.
Vacated and remanded.
Judges WALKER and SMITH concur.
Footnote: 1