IN THE MATTER OF:
Scotland County
No. 00 J 82B
L.C.L
Attorney General Roy Cooper, by Assistant Attorney General
Patrick S. Wooten, for the State.
Moshera H. Mohamed for juvenile appellant.
WYNN, Judge.
The issue before this Court is whether the trial court
committed plain error by imposing a Level 3 disposition and
commitment for juvenile appellant L. C. L. (“Juvenile”). We affirm
the order of the trial court.
On 22 August 2002, Juvenile's court counselor filed a motion
for review alleging that Juvenile violated her probation by leaving
her therapeutic home on or about 16 August 2002 and not returning.
The record shows that Juvenile has an extensive history in the
juvenile courts, beginning at the age of thirteen. On 26 July
2000, she was adjudicated undisciplined. On 9 November 2000, she
was adjudicated delinquent for possession of a weapon on school
property and was placed on probation for one year. Juvenile wascontinued on probation on 20 April 2001 for assaulting a government
official, and again on 14 January 2002 for simple assault. The
former offense is classified as a Class A1 misdemeanor. N.C. Gen.
Stat. § 14-33(c)(4) (2001). A Class A1 misdemeanor is classified
as a serious offense. N.C. Gen. Stat. § 7B-2508(a)(2) (2001).
After considering the evidence presented at the review
hearing, the trial court found that Juvenile violated her probation
by leaving her therapeutic home and not making her whereabouts
known from August until 28 October 2002, when she was taken back
into custody. The trial court ordered Level 3 disposition and
committed Juvenile to the Department of Juvenile Justice and
Delinquency Prevention for placement in a training school.
Juvenile appealed.
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Juvenile asserts the trial court erred in finding that she
violated her probation. Juvenile argues the trial court's decision
contradicts the greater weight of the evidence, in that there is
some evidence that the therapeutic parent ordered her to leave the
home. We are not so persuaded.
Juvenile has failed to file a transcript of the review hearing
as part of the record on appeal, despite her stated intent to do
so. Rule 9 of the Rules of Appellate Procedure requires that the
record on appeal contain so much of the evidence, either in
narrative form or in the verbatim transcript of the proceedings,
as is necessary for an understanding of all errors assigned.
N.C.R. App. P. 9(a)(1)(e). It is the duty of Juvenile to ensurethat the record is complete and in proper form. N.C.R. App. P.
9(c)(3)(b) (“appellant shall cause the settled, verbatim transcript
to be filed, contemporaneously with the record on appeal, with the
clerk of the appellate court in which the appeal is docketed”);
State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983).
Where such evidence is not included in the record, we must presume
that the findings are supported by competent evidence, and such
findings are conclusive on appeal. Nunnery v. Baucom, 135 N.C.
App. 556, 561-62, 521 S.E.2d 479, 484 (1999). We must therefore
presume that the trial court's finding that Juvenile violated her
probation is supported by competent evidence.
Further, the record on appeal supports the trial court's
decision to impose Level 3 disposition and commitment. Under our
Juvenile Code, a court having jurisdiction over a juvenile who has
been adjudicated delinquent has several dispositional alternatives
available, including placement of the juvenile on probation under
the supervision of a juvenile court counselor as specified in N.C.
Gen. Stat. § 7B-2510. N.C. Gen. Stat. § 7B-2506(8) (2001). If the
court finds by the greater weight of the evidence that the juvenile
has violated conditions of probation, it may continue or modify the
original terms of probation, or it may order a new disposition at
the next higher level on the disposition chart of N.C. Gen. Stat.
§ 7B-2508. See N.C. Gen. Stat. § 7B-2510(e) (2001). However, the
court may not impose a Level 3 disposition, commitment to a youth
development center, pursuant to N.C. Gen. Stat. § 7B-2508(e) for a
violation of probation by a juvenile adjudicated delinquent for anoffense classified as minor under N.C. Gen. Stat. § 7B-2508(a)(3).
See N.C. Gen. Stat. § 7B-2510(f) (2001). A minor offense is a
Class 1, 2 or 3 misdemeanor. See N.C. Gen. Stat. § 7B-2508(a)(3)
(2001).
Prior to her Level 3 disposition, Juvenile was on probation
for assaulting a government official. Because Juvenile's actions
constituted a serious rather than a minor offense, the trial court
had authority to order Level 3 disposition. See N.C. Gen. Stat. §
14-33(c)(4); N.C. Gen. Stat. § 7B-2508(a)(2). In making its
findings of fact, the trial court determined that whether or not
the therapeutic parent ordered Juvenile to leave did not excuse
Juvenile's failures to notify anyone of her whereabouts or to
obtain authorization to live in another home. The trial court
noted that Juvenile had placements in at least five homes or care
facilities and that Juvenile repeatedly ran away from the
placements. The trial court also noted the repeat offenses after
Juvenile was placed on probation. In addition, the court found in
the dispositional order that Juvenile last attended school on 29
August 2002 and that Juvenile dropped out of school. Juvenile does
not contest any of these findings. We conclude the trial court
properly imposed Level 3 disposition and commitment.
The order of the trial court is,
Affirmed.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
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