NO. COA02-1581
NO. COA02-1628
1. Juveniles--adjudication order_notice of appeal_amendment_disposition_absence of
jurisdiction
Trial courts in which a juvenile was adjudicated delinquent and to which his case was
transferred for disposition were divested of jurisdiction to amend the adjudication order or to
proceed to disposition when no disposition had been entered within 60 days after entry of the
adjudication order and the juvenile filed notice of appeal of the adjudication order pursuant to
N.C.G.S. § 7B-2602.
2. Juveniles--adjudication order--sufficiency of oral findings
The 10 August 2001 juvenile adjudication order is remanded for correction of the written
order to include the required finding beyond a reasonable doubt that the acts alleged in the
petition were true, which the court stated orally.
3. Juveniles-_adjudication order--motion to dismiss--sufficiency of evidence
Although a juvenile contends the trial court erred in its adjudication finding the juvenile
to be delinquent by failing to grant juvenile's motion to dismiss based on alleged insufficient
evidence, this assignment of error is overruled because the juvenile did not renew his motion to
dismiss after presenting evidence as required by N.C. R. App. P. 10(b)(3).
Attorney General Roy Cooper, by Special Deputy Attorney
General Gayl M. Manthei, for the State.
Leslie C. Rawls, for juvenile-appellant.
CALABRIA, Judge.
Dremonda Eugene Rikard (“juvenile”) appeals the 10 August 2001
adjudication order entered by Judge Jonathan L. Jones in Catawba
County District Court adjudicating him a delinquent juvenile. Juvenile also appeals the 25 January 2002 disposition order entered
by Judge Charlie E. Brown in Rowan County District Court ordering
probation and enrollment in an outpatient treatment program.
Because we find juvenile failed to preserve appellate review of his
motion to dismiss, we affirm the adjudication order on this basis.
We reverse and remand the adjudication order for correction of the
written order to reflect the trial court's oral findings. Since we
find the trial courts exceeded their statutory authority, we vacate
the courts' amended adjudication order and the disposition order
since both were entered during the pendency of the appeal.
On 19 February 2001, a petition was filed alleging juvenile
violated N.C. Gen. Stat. § 14-202.2, indecent liberties between
children. At a 6 August 2001 hearing, the court orally found
“beyond reasonable doubt that the acts alleged in the petition are
true.” Juvenile was adjudicated a delinquent juvenile and the
court ordered the case transferred to Rowan County, where juvenile
resided, for disposition. The adjudication order, filed 10 August
2001, not only lacked the court's oral finding of fact that the
State had proven the case beyond a reasonable doubt, but also
lacked any findings of fact regarding the acts alleged in the
petition. On 10 October 2001, juvenile filed a notice of appeal.
On 16 November 2001, a Rowan County District Court judge
examined the 10 August 2001 order. The court was unable to hold a
disposition hearing since there was “no delinquent act to dispose
of” since the 10 August 2001 order lacked the requisite written
findings stating the acts alleged in the petition had been provenbeyond a reasonable doubt. The case was transferred back to
Catawba County to include the requisite written findings in an
amended adjudication order. Thereafter, on 11 December 2001, the
court in Catawba County entered an amended juvenile adjudication
order finding beyond a reasonable doubt “the juvenile did commit
the acts alleged in the petition, Indecent Liberties Between
Minors. . .” and adjudicating him a delinquent juvenile. The case
was transferred back to Rowan County for disposition. The
disposition hearing was held 25 January 2002, and the court ordered
juvenile to serve twelve months probation and during the
probationary period to enroll in an outpatient youthful sex
offenders treatment program.
Juvenile appeals asserting: (I) the Rowan County court lacked
jurisdiction to transfer the case back to Catawba County for a
modification of its findings of fact, and the Rowan County court
lacked jurisdiction to enter a disposition order since the
adjudication order was on appeal; (II) the Catawba County court
erred in its adjudication by failing to grant juvenile's motion to
dismiss for insufficiency of the evidence.
I. Jurisdiction after appeal
[1] When no disposition was entered within sixty days of
juvenile's adjudication as delinquent, juvenile appealed the
adjudication. However, neither the trial court in Rowan County nor
the court in Catawba County ceased action on juvenile's case.
After his appeal, they transferred the case between them, entered
an amended adjudication order making necessary findings of fact,held a disposition hearing and entered a disposition order.
Juvenile asserts that as of 10 October 2001, when he filed his
appeal, the trial courts were divested of jurisdiction. We agree.
Our statutory law provides juveniles with a right to appeal
any final orders of the court. N.C. Gen. Stat. § 7B-2602 (2001).
An adjudication order may be appealed “if no disposition is made
within 60 days after entry of the order. . . .” Id. “[W]ritten
notice of appeal may be given within 70 days after such entry.”
Id. Pending disposition of the appeal, the statute directs the
trial court to release the juvenile, with or without conditions,
unless the court delineates, in writing, compelling reasons
justifying the entry of “a temporary order affecting the custody or
placement of the juvenile as the court finds to be in the best
interests of the juvenile or the State.” N.C. Gen. Stat. § 7B-2605
(2001). Following “the affirmation of the order of adjudication or
disposition of the court by the Court of Appeals . . . the court
shall have the authority to modify or alter the original order . .
. .” N.C. Gen. Stat. § 7B-2606 (2001). Accordingly, nothing in
the statute permits the trial court to modify the order or proceed
to disposition during the pendency of the appeal of an adjudicatory
order.
Nevertheless, the State asserts this Court's holding in In re
Huber, 57 N.C. App. 453, 291 S.E.2d 916 (1982) is controlling. In
Huber, during the pendency of an appeal, a district court ordered
the removal of a neglected child from her mother's custody. Huber,
57 N.C. App. at 455-56, 291 S.E.2d at 918. The controllingstatute, nearly identical to the statute in the case at bar,
permitted the district court to issue “temporary orders affecting
the custody or placement of the juvenile as the judge determines to
be in the best interest of the juvenile or the state.” Id., 57
N.C. App. at 459, 291 S.E.2d at 920 (citing N.C. Gen. Stat. § 7A-
668 (1980)). Accordingly, this Court upheld the district court's
custody order. Id.
In both Huber and the case at bar, the statute provided for
action by the district court to affect the juvenile's custody or
placement. The difference between Huber and the case at bar is
manifest. In Huber the court acted pursuant to statutory
authority; in the case at bar, the court exceeded its authority.
The trial courts here transferred the case between them, entered an
amended adjudication order and also entered a disposition order.
The State argues that even if the other orders were improper, the
disposition order required probation, which, they assert, is a
derivative of custody, and therefore that order was proper under
the statute. We disagree. Even assuming arguendo that the
statutory language “custody or placement” includes an order for
probation, the disposition order relied on the other invalid orders
of the trial court, and the disposition order did not comply with
the statutory directive requiring compelling reasons in writing
from the court justifying its actions and applying best interests
analysis. Accordingly, we find the trial court's orders, entered
after juvenile appealed, exceeded its statutory authority under
N.C. Gen. Stat. § 7B-2605, and therefore must be vacated. II. The Original Adjudication Order
[2] Our analysis of the trial courts' actions exceeding their
jurisdiction squarely raises the issue of the effect of the 10
August 2001 written adjudication order that did not contain the
required findings of fact. Our statute requires that “[i]f the
court finds that the allegations in the petition have been proven
as provided in G.S. 7B-2409, the court shall so state.” N.C. Gen.
Stat. § 7B-2411 (2001). Moreover, “[t]his 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 Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001).
The question presented here is whether a trial court's oral
findings suffice even though they are omitted from the written
order. We hold oral findings suffice, but the written order must
be corrected so the record reflects the finding.
Our statute requires a judge to “state” the finding that the
allegations in the petition have been proven beyond a reasonable
doubt in order to adjudicate a child as a delinquent. N.C. Gen.
Stat. § 7B-2411. There is no requirement that the finding must be
in writing. We implied in Eades that “any order, written or oral”
making the required finding would suffice. Eades, 143 N.C. App. at
713, 547 S.E.2d at 148. Moreover, we have previously held a
court's failure to make the finding orally at the time of the
hearing is not error where the finding was included in the written
order. In re Mitchell, 87 N.C. App. 164, 166, 359 S.E.2d 809, 811
(1987). Finally, our statute expressly requires “[t]hedispositional order shall be in writing . . . .” N.C. Gen. Stat.
§ 7B-2512 (2001). Accordingly, the legislature required the
necessary findings be in writing for the dispositional order but
not the adjudicatory order. However, since it is incumbent that
the record reflect this finding, we remand for entry of an amended
written order including the court's oral finding that “beyond [a]
reasonable doubt that the acts alleged in the petition are true.”
See Eades, 143 N.C. App. at 713, 547 S.E.2d at 148 (requiring a
compliant adjudication be evident in the record).
[3] Since we have found the adjudication order may be
corrected to include the oral finding, we must address whether or
not the order should be vacated because the Catawba County court
erred in failing to dismiss the adjudication order due to
insufficient evidence.
(See footnote 1)
See In re Walker, 83 N.C. App. 46, 348
S.E.2d 823 (1986) (addressing juvenile's assignment of error that
the evidence was insufficient after determining the court failed to
make the required finding of fact that the allegations in the
petition have been proven). The court denied juvenile's motion to
dismiss, for insufficiency of the evidence, submitted at the close
of the State's evidence, and juvenile proceeded to present
evidence. Juvenile did not renew his motion at the close of all
the evidence. “[J]uveniles 'may challenge the sufficiency of theevidence by moving to dismiss the juvenile petition.'” In re Heil,
145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (quoting In re Davis, 126
N.C. App. 64, 65-66, 483 S.E.2d 440, 441 (1997)). “If a defendant
makes [a motion to dismiss for insufficient evidence] after the
State has presented all its evidence and has rested its case and
that motion is denied and the defendant then introduces evidence,
his motion for dismissal. . . is waived.” N.C.R. App. P. 10(b)(3)
(2003). “Such a waiver precludes the defendant from urging the
denial of such motion as a ground for appeal.” Id. Since juvenile
did not renew his motion to dismiss, this assignment of error is
overruled.
Accordingly, we hold the trial court orders entered following
the 10 August 2001 adjudication order were entered without
jurisdiction and must be vacated. The 10 August 2001 adjudication
order is reversed and remanded for correction of the written order
to include the required finding which the court stated orally. The
10 August 2001 adjudication order is otherwise affirmed.
Vacated in part, reversed and remanded in part, affirmed in
part.
Judges McGEE and HUNTER concur.
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