1. Juveniles--restitution--means to pay
The trial court erred by ordering juveniles to pay restitution for throwing rocks at a car
where there was insufficient evidence that the juveniles had or could reasonably acquire the means
to pay $539.50 each within twelve months.
2.Juveniles--restitution--parents' ability to pay
N.C.G.S. § 7A-649(2) does not authorize the juvenile court to consider the parents' ability
to pay restitution when ordering juveniles to make restitution to the victim as a condition of
probation.
3. Juveniles--delinquency--wanton and willful conduct
There was sufficient evidence in a juvenile proceeding to support findings that the
juveniles acted wantonly and willfully in damaging a vehicle, thus supporting findings of
delinquency.
Attorney General Michael F. Easley, by Assistant Attorney
General Anna K. Baird, for the State.
Tron D. Faulk for respondent-appellant Rodney McKoy; Yvonne K.
Smith for respondent-appellant Rondell McKoy.
WALKER, Judge.
On 27 October 1998, Rodney McKoy, age 8, and Rondell McKoy,
age 7, (collectively “the juveniles”) were adjudicated delinquent
for willfully and wantonly injuring the personal property of
another in violation of N.C. Gen. Stat. § 14-160. After a
dispositional hearing, the juveniles were placed on supervisedprobation for a period of twelve months with certain terms and
conditions. One of the conditions was that probation would be
renewed at the end of the twelve-month period if each juvenile had
not paid $539.50 in restitution.
The State's evidence at the adjudicatory hearing tended to
establish the following: On 6 August 1998, the juveniles were
standing at the bus stop as Melissa Laird drove her 1989 Ford
vehicle past them. Ms. Laird testified that she saw the two
juveniles, who were standing with three other children at the bus
stop, throw rocks toward her car. She then heard “pow, pow, pow”
as the rocks hit her car. Ms. Laird immediately “slammed on [her]
brakes,” turned the car around, and saw the juveniles run behind a
house. She provided information to the authorities, who located
the juveniles. Ms. Laird further testified that the paint on her
car was “chipped and scratched” and the windshield was “busted in
three or four spots,” resulting in approximately $1,000.00 in
damage.
Milton Jackson, the juveniles' stepfather, testified on the
juveniles' behalf, stating that he had questioned the juveniles
regarding this incident and that they had both denied throwing
rocks at the car. Mr. Jackson further testified that the juveniles
are “very truthful” and “very disciplined.” During the adjudicatory
hearing, juvenile Rodney McKoy admitted throwing rocks to try “to
hit the doggie” but denied hitting Ms. Laird's car with rocks. He
further testified that someone named “Tyrone” hit the car with
rocks. Juvenile Rondell McKoy testified that he did not pick upany rocks that day although his brother did. He also
stated that it was “Tyrone” who hit Ms. Laird's car with rocks, not
his brother.
The juveniles contend that the juvenile court erred in: (1)
ordering them each to pay $539.50 in restitution since it did not
consider their best interests and needs as required by N.C. Gen.Stat. § 7A-646; (2) ordering them each to pay $539.50 in
restitution where they do not have the means and cannot reasonably
acquire the means to pay this amount; (3) considering the ability
of the juveniles' parents to pay the restitution; and (4) in
finding the juveniles were delinquent for committing injury to
personal property since the evidence was insufficient to show the
juveniles acted wantonly and willfully.
[1]We first address the juveniles' contentions that the
juvenile court erred in ordering them each to pay $539.50
restitution since it did not consider their best interests and
needs as required by N.C. Gen. Stat. § 7A-646 (1995)(repealed 1
July 1999) and since they were without the means to make such
restitution within twelve months. The juveniles cite to In re
Berry, 33 N.C. App. 356, 235 S.E.2d 278 (1977), in which two
juveniles were adjudicated delinquent for willfully and wantonly
damaging real property and ordered to pay restitution in the amount
of $666.50 each as a condition of probation. On appeal, this Court
stated:
[A] requirement that a juvenile make
restitution as a condition of probation must
be supported by the record and appropriate
findings of fact which demonstrate that the
best interest of the juvenile will be promoted
by the enforcement of the condition.
Id. at 360, 235 S.E.2d at 280-281. After examining the record,
this Court found that the juvenile court had failed to make any
findings from which it could be “determined that such a condition
is fair and reasonable, relates to the needs of the children, tends
to promote the best interest of the children, or is in conformitywith the avowed policy of the State in its relation to juveniles.”
Id. Thus, the record was insufficient to support the condition of
probation requiring the juveniles to make restitution. Id.
The juveniles also cite to In re Register, 84 N.C. App. 336,
352 S.E.2d 889 (1987), a prior decision of this Court involving
seventeen juveniles who had vandalized the victim's residence while
she was away. In that case, only eight of the seventeen juveniles
were selected for prosecution based on their or their parents'
unwillingness or inability to pay $1,000.00 each in restitution to
the victim. Id. On appeal, this Court stated:
We endorse the discriminate and prudent use of
restitution in juvenile cases as provided in
G.S. 7A-649, but compensation of victims
should never become the only or paramount
concern in the administration of juvenile
justice.
Id. at 339, 352 S.E.2d at 891. This Court found that the juvenile
judge did not follow the provisions of the juvenile code set forth
in N.C. Gen. Stat. § 7A-646 since there was “nothing in the record
to indicate that the court heard and considered any evidence as to
the most appropriate dispositional order in each case.” Id. at
349-350, 352 S.E.2d at 896-897. Instead, the “overriding concern”
of the juvenile court was “reimbursing the victim for her financial
loss.” Id. Thus, this Court held that the juvenile court erred in
requiring the juveniles accused of vandalism to pay $1,000.00 each
in restitution. Id.
Here, the record reveals that during the dispositional
hearing, the juvenile judge was concerned that the parents of the
juveniles had not taken responsibility for payment of the damages. The juvenile judge observed that he would extend probation until
each juvenile reached eighteen years of age unless restitution was
made. Although the dispositional order otherwise addresses the
needs and best interest of each juvenile, the record does not
reveal any findings which demonstrate that ordering each juvenile
to pay $539.50 in restitution was in their best interest.
Furthermore, N.C. Gen. Stat. § 7A-649 provides that a judge
may:
(2) Require restitution, full or partial,
payable within a 12-month period to any person
who has suffered loss or damage as a result of
the offense committed by the juvenile; ...
however, the judge shall not require the
juvenile to make restitution if the juvenile
satisfies the court that he does not have, and
could not reasonably acquire, the means to
make restitution.
N.C. Gen. Stat. § 7A-649(2)(1995)(repealed 1 July 1999); See N.C.
Gen. Stat. § 7B-2506(4)(1999). Here, the juvenile judge determined
that the juveniles, ages 7 and 8, were “not old enough” to
participate in the Lee County restitution program. The juvenile
judge then found:
The only way that I can ever see any
possibility of this lady getting her money,
because of the age of these juveniles, and
it's not going to be any time soon, is to put
them on probation and just to keep extending
it until the money is paid.
We note that on 1 October 1998, the Clerk of Superior Court
determined that both juveniles were indigent, and counsel was
appointed to represent them. See In re Edwards, 18 N.C. App. 469,
197 S.E.2d 87 (1973). Therefore, we conclude that there was
insufficient evidence before the juvenile court that the juvenileshad or could reasonably acquire the means to pay $539.50 each in
restitution within twelve months, and thus, it was not in their
best interest to require such. We do not suggest, however, that
the juvenile court is prohibited from making an inquiry of a
juvenile during the dispositional hearing in order to determine if
the juvenile has the ability to make full or partial restitution
within the twelve-month probationary period.
[2]The juveniles next contend that the juvenile court erred
in considering their parents' ability or willingness to pay the
restitution. In her recommendation to the juvenile court, the
intake counselor recommended as a condition of probation for each
juvenile that the parents be responsible to make restitution to the
victim. While the dispositional orders make no reference to the
parents' obligation to pay restitution, the juvenile judge's
comments during the dispositional hearing indicate that he
considered the parents' ability or willingness to make restitution
in ordering the juveniles to pay $539.50 each as a condition of
probation. The juveniles rely on In re Register, 84 N.C. App. 336,
350, 352 S.E.2d 889, 897 (1987), in which this Court held:
[T]he limit of the parents' civil liability
for damage 'maliciously or willfully' done to
property by a juvenile pursuant to G.S. 1-
538.1, is not the proper criteria for
determining the punishment to be imposed upon
that juvenile found to be delinquent under
G.S. 7A-649.
The State argues that In re Register is distinguishable but fails
to cite any authority to support its argument that the parents'ability to pay restitution can be considered in determining a
juvenile's disposition.
We note that N.C. Gen. Stat. § 7A-649(2)(1995)(repealed 1 July
1999), set forth above, addresses only whether the juvenile has or
could reasonably acquire the means to make restitution and does not
address the parents' ability to pay. Furthermore, we also note
that N.C. Gen. Stat. § 1-538.1 (1999) provides for parents to be
held strictly liable for a victim's actual damages up to $2,000.00
where a minor maliciously or willfully injures such person or their
property. In Insurance Co. v. Faulkner, 259 N.C. 317, 323, 130
S.E.2d 645, 650 (1963), our Supreme Court found:
G.S. § 1-538.1, and similar statutes, appear
to have been adopted not out of consideration
for providing a restorative compensation for
the victims of injurious or tortious conduct
of children, but as an aid in the control of
juvenile delinquency.... Its rationale
apparently is that parental indifference and
failure to supervise the activities of
children is one of the major causes of
juvenile delinquency; that parental liability
for harm done by children will stimulate
attention and supervision; and that the total
effect will be a reduction in the anti-social
behavior of children.
Thus, we conclude that N.C. Gen. Stat. § 7A-649(2) does not
authorize the juvenile court to consider the parents' ability to
pay restitution when ordering the juveniles to make restitution to
the victim as a condition of probation.
[3]The juveniles' last assignment of error is that the
juvenile court erred in finding them delinquent for committing
injury to property since there was insufficient evidence to show
they acted “wantonly and willfully.” “Ordinarily, wilful as usedin criminal statutes means the wrongful doing of an act wit
hout
justification or excuse, or the commission of an act purposely and
deliberately in violation of the law.” State v. Casey, 60 N.C.
App. at 414, 416-417, 299 S.E.2d 235, 237, disc. review denied, 308
N.C. 192, 302 S.E.2d 245 (1983). The word “willful” means
“voluntary and intentional, but not necessarily malicious.” Black's
Law Dictionary 1593 (7th ed. 1999). “Conduct is wanton when [it is]
in conscious and intentional disregard of and indifference to the
rights and safety of others.” Casey, 60 N.C. App. at 416-417, 299
S.E.2d at 237. After carefully reviewing the record, we conclude
that there was sufficient evidence to support the juvenile court's
findings that the juveniles acted “wantonly and willfully” in
damaging Ms. Laird's vehicle, and thus support the findings of
delinquency.
In summary, the dispositional orders in No. 98 J 92 and No. 98
J 93 are modified by vacating the special condition of probation
requiring the juveniles to make restitution by the payment of
$539.50 each. Except as specifically modified, the dispositional
orders are affirmed.
Vacated in part and affirmed in part.
Judges GREENE and TIMMONS-GOODSON concur.
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