Guilford County Attorney's Office, by Deputy County Attorney
J. Edwin Pons, for petitioner-appellant.
D'Amelio, McKinney & Ernest, LLP, by Jeremy L. McKinney for
respondent-appellee.
HUNTER, Judge.
Guilford County (“County”) appeals orders wherein the trial
court ordered that it pay $658.74 for the mental health evaluation
of the juvenile Douglas Voight (“Voight”) under N.C. Gen. Stat. §
7A-647 (Supp. 1998). Voight contends that the County does not have
standing to appeal. We agree, and dismiss the present appeal.
Briefly, the record reveals that Voight was adjudicated to be
a delinquent juvenile on 10 December 1998. On 7 May 1999, the
trial court ordered the County to pay the costs of Voight's mental
health evaluation pursuant to N.C. Gen. Stat. § 7A-647 (repealed
effective 1 July 1999 and recodified in the present Juvenile Code,
N.C. Gen. Stat. § 7B-100, et seq.). This statute provided, in
pertinent part: (3) . . . [T]he 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.
a. Upon completion of the examination,
the judge shall conduct a hearing to
determine whether the juvenile is in
need of medical, surgical,
psychiatric, psychological, or other
treatment and who should pay the
cost of the treatment. The county
manager, or such person who shall be
designated by the chairman of county
commissioners, of the juvenile's
residence shall be notified of the
hearing, and allowed to be heard.
If the judge finds the juvenile to
be in need of medical, surgical,
psychiatric, psychological or other
treatment, the judge shall permit
the parent or other responsible
persons to arrange for
treatment. . . . If the judge finds
the parent is unable to pay the cost
of treatment, the judge shall order
the county to arrange for treatment
of the juvenile and to pay for the
cost of the treatment. The county
department of social services shall
recommend the facility that will
provide the juvenile with treatment.
N.C. Gen. Stat. § 7A-647(3)(a) (Supp. 1998) (emphasis added).
Prior to an amendment by the General Assembly in 1996, which added
the portion we have emphasized, this statute did not give counties
notice or the right to participate in the hearing which could
result in their being required to pay for a juvenile's treatment.
See Case notes, N.C. Gen. Stat. § 7A-647 (Supp. 1998). While the
County in the present case did participate in the hearing in the
trial court, our Supreme Court, citing N.C. Gen. Stat. § 7A-667,has held: “Even if the county had been a party [in a juvenile
case], it would not have had the right to appeal . . .” under N.C.Gen. Stat. § 7A-667. In re Brownlee, 301 N.C. 53
2, 547, 272 S.E.2d
861, 870 (1981) (emphasis in original). N.C. Gen. Stat. § 7A-667
(repealed effective 1 July 1999 and recodified in the present
Juvenile Code, N.C. Gen. Stat. § 7B-100, et seq.) entitled “Proper
parties for appeal,” as quoted in Brownlee, provided that in
juvenile cases:
An appeal may be taken by the juvenile;
the juvenile's parent, guardian, or custodian;
the State or county agency. The State's
appeal is limited to the following:
(1) Any final order in cases other than
delinquency or undisciplined cases;
(2) The following orders in delinquency
or undisciplined cases:
a. An order finding
a State
statute to be unconstitutional;
b. Any order which t
erminates the
prosecution of a petition by
upholding the defense of double
jeopardy, by holding that a
cause of action is not stated
under a statute, or by granting
a motion to suppress.
N.C. Gen. Stat. § 7A-667 (1995 and Supp. 1998). As to this
statute, our Supreme Court has stated: “It is manifest that [N.C.
Gen. Stat. § 7A-667] . . . does not empower a county to take an
appeal in a juvenile proceeding.” Brownlee, 301 N.C. at 547, 272
S.E.2d at 870. The following year, the Supreme Court affirmed this
holding, stating: “the Court of Appeals properly held that [a
county] had no right to appeal from the order . . . [in the
juvenile proceeding]. We reaffirm our decision in Brownlee withrespect to a county's right to appeal from orders entered in a
juvenile proceeding.” In re Wharton, 305 N.C. 565, 569, 290 S.E.2d
688, 690 (1982). While the General Assembly chose to amend N.C.
Gen. Stat. § 7A-647 in 1996 to give a county notice and the
opportunity to be heard at certain juvenile hearings, it did not
amend N.C. Gen. Stat. § 7A-667 giving a county the right to appeal
in a juvenile proceeding. Under recodification in our new Juvenile
Code, the General Assembly specifically deleted “county agency”
from this rule, providing:
An appeal may be taken by the juvenile,
the juvenile's parent, guardian, or custodian,
or the State. The State's appeal is limited
to the following orders in delinquency or
undisciplined cases:
(1) An order finding a State statute to
be unconstitutional; and
(2) Any order which terminates the
prosecution of a petition by
upholding the defense of double
jeopardy, by holding that a cause of
action is not stated under a
statute, or by granting a motion to
suppress.
N.C. Gen. Stat. § 7B-2604 (1999). Thus, a county has never had the
statutory right to appeal in a juvenile proceeding in this state.
In Brownlee and Wharton, despite holding that a county had no
right to appeal a juvenile delinquency action, the Supreme Court
exercised its power under the N.C. Constitution, Article IV,
Section 12(1) to issue a remedial writ. This section of our
constitution states:
(1) Supreme Court. The Supreme Court
shall have jurisdiction to review upon appealany decision of the courts below, upon any
matter of law or legal inference. The
jurisdiction of the Supreme Court over “issues
of fact” and “questions of fact” shall be the
same exercised by it prior to the adoption of
this Article, and the Court may issue any
remedial writs necessary to give it general
supervision and control over the proceedings
of the other courts. The Supreme Court also
has jurisdiction to review, when authorized by
law, direct appeals from a final order or
decision of the North Carolina Utilities
Commission.
(2) Court of Appeals. The Court of
Appeals shall have such appellate jurisdiction
as the General Assembly may prescribe.
N.C. Const. art. IV, § 12(1), (2) (emphasis added). Thus, this
Court does not have the power to issue a remedial writ under our
Constitution, although we do have the power to issue certain
prerogative writs under N.C. Gen. Stat. § 7A-32 (1999).
We recognize that this Court considered an appeal by a county
in a juvenile case in In Re D.R.D., 127 N.C. App. 296, 488 S.E.2d
842 (1997); however, the issue of whether or not the county had the
right to appeal was not raised in that case, as it has been in the
case sub judice, and the court made no holding on that issue.
Thus, though the Court considered the appeal in In Re D.R.D., that
case gives us no authority to consider the present appeal, and
neither do our General Statutes.
We recognize that it is highly unusual that the county must be
given notice and the opportunity to be heard at a juvenile hearing,
but is not allowed, under our General Statutes, the right to appeal
the trial court's order that it pay for the juvenile's treatment asa result of the hearing. However, until our General Assembly
decides otherwise, we must abide by our Supreme Court's holdings in
Brownlee and Wharton, and based on the precedent set by them, the
County has no right of appeal. Accordingly, we are required to
dismiss the present appeal.
Dismissed.
Judges GREENE and HORTON concur.
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