Juveniles--no adjudication of delinquency--disposition improper
The trial court erred by failing to enter an adjudicatory order stating that allegations in the
juvenile delinquency petition had been proven beyond a reasonable doubt prior to entering
disposition.
Attorney General Michael F. Easley, by Assistant Attorney
General David Gordon, for the State.
Staton, Perkinson, Doster, Post & Silverman, by Jonathan
Silverman, for juvenile-appellant.
BIGGS, Judge.
This appeal arises from a juvenile disposition order filed on
9 November 1999. The juvenile argues a number of assignments of
error, however, we find that only assignment of error number 4,
which states that the trial court erred by failing to enter an
adjudicatory order, merits further consideration. For the reasons
stated herein, we find that the trial court did err in failing to
enter an adjudicatory order and we thereby vacate the order of
disposition and remand this matter for adjudication and disposition
consistent with this opinion.
On 9 March 1999, two juvenile petitions were filed with the
Lee County Juvenile Court alleging that Jonathan Eades, a fourteen
(14) year old juvenile, was delinquent, having taken indecentliberties with his cousins, ages 5 and 6, in violation of N.C.G.S.
§ 14-202.2 (1999). The record on appeal states that an order was
entered on 18 May 1999, adjudicating the juvenile delinquent, and
further states that no written adjudicatory order was entered in
this action. On 9 November 1999, a disposition order was filed
with the Lee County Clerk of Court. From this order, the juvenile
now appeals.
The juvenile contends that the trial court committed
reversible error when it failed to state that allegations in the
petition had been proven beyond a reasonable doubt. We agree.
N.C.G.S. § 7A-631 (1995) (repealed 1 July 1999)
(See footnote 1)
governing
juvenile hearings contemplates two phases in juvenile hearings --
adjudication and disposition. See N.C.G.S. § 7B-2405 (1999) (“The
adjudicatory hearing shall be a judicial process designed to
determine whether the juvenile is undisciplined or delinquent.”);
see also, In re Fewell, 32 N.C. App. 295, 297, 231 S.E.2d 925, 926-
27 (1977) (refers to N.C.G.S. § 7A-285, which was repealed in 1980,
and restated in N.C.G.S. § 7A-631 (1995)). During the adjudicatory
phase, allegations of a petition alleging that a juvenile is
delinquent shall be proven beyond a reasonable doubt. N.C.G.S. §
7A-635 (1995) (repealed 1 July 1999); see also, N.C.G.S. § 7B-2409
(1999). “If the judge finds that the allegations in the petition
have been proved as provided in G.S. 7A-635 [beyond a reasonable
doubt], he shall so state.” N.C.G.S. § 7A-637 (1995) (repealed 1July 1999) (emphasis added); see also, N.C.
G.S. § 7B-2411 (1999).
This Court has held that use of the language “shall” is a mandate
to trial judges, and that failure to comply with the statutory
mandate is reversible error. In re Walker, 83 N.C. App. 46, 47,
348 S.E.2d 823, 824 (1986); In re Johnson, 76 N.C. App. 159, 331
S.E.2d 756 (1985); In re Wade, 67 N.C. App. 708, 313 S.E.2d 862
(1984); In re Mitchell, 87 N.C. App. 164, 359 S.E.2d 809 (1987).
In the case sub judice, the State concedes, “that there is no
Adjudicatory Order in the record; nor is there an adjudication
reflected in the transcript originally filed with the record; nor
is there an adjudication reflected in the transcript which the
State had transcribed later. . . .” Likewise, our review reveals
that the record is completely devoid of any order, written or oral,
declaring that the allegations in the juvenile petitions were
proven beyond a reasonable doubt. Consequently, we find that the
trial court committed reversible error in failing to adjudicate the
juvenile, delinquent, prior to entering disposition.
Furthermore, the absence of an order adjudicating the juvenile
delinquent renders the disposition order improper. Absent an
adjudication of delinquency, a trial court has no authority to
order disposition. In the Matter of Hull, 89 N.C. App. 138, 141,
365 S.E.2d 221, 223 (1988); see also, In the Matter of Kenyon N.,
110 N.C. App. 294, 298, 429 S.E.2d 447, 449 (1993) (without a valid
adjudication of delinquency, the trial court was without
jurisdiction to commit the juvenile to the Division of Youth
Services). Moreover, due process for juveniles requires a“determination of delinquency. . . .” In the Matter of Arthur,
27
N.C. App. 227, 229, 218 S.E.2d 869, 871, rev'd on other grounds,
291 N.C. 640, 231 S.E.2d 614 (1977); In re Gault, 387 U.S. 1, 18
L. Ed. 2d 527 (1967). As stated above, the record is completely
devoid of an order adjudicating the juvenile delinquent. Therefore
the disposition, which can only be entered upon an adjudication of
delinquency, was improperly ordered.
This Court notes that the posture in which this appeal reached
the Court is disturbing. It is incumbent upon the judge in a
juvenile case to ensure that before entering a disposition an
adjudication has occurred and is evident in the record. Further,
both the State and defense attorney have an obligation to ensure
that the record on appeal is complete so that the merits of the
appeal can be addressed. This was not done here.
Accordingly, we vacate the disposition order filed 9 November
1999 and remand this matter to the trial court for adjudication and
disposition consistent with this opinion.
Vacated and remanded.
Judges WALKER and SMITH concur.
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