IN THE MATTER OF: T.B.M. Gaston County
No. 00 J 208
Attorney General Roy Cooper, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Sofie W. Hosford, for juvenile-appellant.
CALABRIA, Judge.
Juvenile T.B.M. appeals the district court's “JUVENILE LEVEL
3 DISPOSITION AND COMMITMENT ORDER” which ordered his commitment to
the Department of Juvenile Justice and Delinquency Prevention for
an indefinite term of not less than six months but not to exceed
his eighteenth birthday.
Juvenile was adjudicated delinquent in Mecklenburg County
District Court on 17 March 2004, upon a finding that he committed
two simple assaults as alleged in petitions filed 22 January 2004.
His case was transferred to Gaston County for disposition. At a
disposition hearing held 3 May 2004, the court heard evidence of
juvenile's four prior delinquency adjudications: (1) a 12 October
2000 adjudication for disorderly conduct; (2) a 17 January 2003
adjudication for disorderly conduct; (3) a 28 July 2003adjudication for assault inflicting serious injury and simple
assault; and (4) a 2 October 2003 adjudication for assault upon a
government official. The court heard additional testimony
regarding juvenile's placement and behavioral history from his
court counselor, mental health case manager, Community Based
Services worker, and mother. It also received records related to
his past placements and mental health treatment.
Pursuant to its authority under N.C. Gen. Stat. § 7B-2508(g)
(2003), the court imposed a Level 3 disposition, committing
juvenile to a youth development center. The court supported its
disposition order with the following written findings of fact:
. . .[T]he juvenile has been diagnosed
previously with Oppositional Defiant Disorder;
. . .
The juvenile will turn sixteen years of age on
May 5, 2004;
The juvenile has previously been placed at the
Fresh Start Group Home, a Level 3 placement
and was discharged from that program;
The juvenile was placed at a Level 4
therapeutic placement at the Keys of Carolina
and [was] terminated from that program due to
assaultive behavior and disruption;
The juvenile was placed at the Day Reporting
Center, an educational program, and was
terminated from that program due to poor
behavior;
The juvenile is currently placed at C-Bay, a
Level 3 placement, that he has been placed
there since February 10, 2004;
. . .
The juvenile has a lengthy history of
assaultive behavior on staff at his
placements;
The juvenile has demonstrated a danger to
persons;
The juvenile has disrupted multiple less
restrictive placements which provided
treatment by engaging in assaultive and
disruptive behavior;
The juvenile has a history and pattern of
positive behavior at the beginning of his
placement but which eventually deteriorates
resulting in discharge;
. . .
The juvenile needs to experience the
consequences for his assaultive and disruptive
behaviors.
. . .
The juvenile has four or more prior
adjudications of delinquency[.]
In open court and in appellate entries entered 6 May 2004, the
court further ordered that juvenile be denied release pending
appeal under N.C. Gen. Stat. § 7B-2605 (2003). By a separate
“TEMPORARY COMMITMENT/SECURE CUSTODY ORDER[,]” it directed that
“juvenile be held at the appropriate secure detention facility
pending transport to the N.C. Youth Development Center.”
Juvenile first argues on appeal that the district court abused
its discretion in imposing a Level 3 disposition under N.C. Gen.
Stat. § 7B-2508(g). Noting that it had the option under N.C. Gen.
Stat. § 7B-2508(f) to impose a Level 2 intermediate disposition, he
suggests the court instead “blindly followed the recommendation ofthe court counselor and ordered the juvenile committed to training
school.”
As previously summarized, juvenile was adjudicated delinquent
for two minor offenses, and his delinquency history level was high.
As he correctly notes, N.C. Gen. Stat. § 7B-2508(f) prescribed a
Level 2 intermediate disposition in this context. However, N.C.
Gen. Stat. § 7B-2508(g) further authorized the court to impose a
Level 3 disposition of commitment, “[n]otwithstanding subsection
(f) of this section,” based upon juvenile's four prior
adjudications of delinquency. “[I]n those instances where there is
a choice of [dispositional] level, there are no specific guidelines
solely directed at resolving that issue. Accordingly, choosing
between two appropriate dispositional levels is within the trial
court's discretion.” In re Robinson, 151 N.C. App. 733, 737, 567
S.E.2d 227, 229 (2002). This Court will not overturn the district
court's choice of an authorized disposition, absent a showing that
it “is so arbitrary that it could not have been the result of a
reasoned decision.” Id. (citations quotation marks omitted).
We find no abuse of discretion by the district court. The
court explicitly recognized its statutory authority to impose
either a Level 2 disposition under N.C. Gen. Stat. § 7B-2508(f), or
a Level 3 disposition under N.C. Gen. Stat. § 7B-2508(g). It
explained its choice of a Level 3 disposition in open court as
follows:
. . . I've got a history here of a placement
where [juvenile] does well for four months,
then he assaults staff or has disruptive
behavior. Another placement, he does fine forthe first four months, then he assaults staff
and gets discharged. Now I've got a third
placement, which we're two and a half months
into, which there has been no assaultive
behavior, but that followed his previous
pattern. There have been some problems,
although not major, some disciplinary
problems. It seems like I've got a pattern
here over the past year or year and a half of
four months of good behavior, then assaultive
behavior, four months of good behavior, then
assaultive behavior.
. . . His prior history and conduct
certainly lead this Court to believe that at
the four-month stage we're going to be right
back here the same way we were on two prior
occasions, where you've got a history of good
behavior and then assault.
The court's written findings further reflect its consideration of
juvenile's “lengthy history of assaultive behavior on staff at his
placements,” the evidence that he presented “a danger to
persons[,]” as well as juvenile's need “to experience the
consequences for his assaultive and disruptive behaviors.”
Contrary to juvenile's assertion on appeal, both the court's oral
and written findings reflect its consideration of juvenile's course
of conduct during his various placements, including his most recent
placement at C-Bay beginning in February, 2004. The record
reflects the court's careful evaluation of the evidence and its
reasoned selection of a Level 3 disposition based thereon. We
overrule juvenile's assignment of error.
Juvenile also contends that the district court denied him
release from his commitment on appeal without complying with the
applicable statute, which provides as follows:
Pending disposition of an appeal, the release
of the juvenile, with or without conditions,should issue in every case unless the court
orders otherwise. For compelling reasons
which must be stated in writing, the court may
enter 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 (2003). Juvenile avers the court entered
no separate findings of fact or conclusions of law in support of
its decision. The record before this Court contains no additional
written findings of fact beyond those included in the court's
dispositional order.
We have previously found error under N.C. Gen. Stat. 7B-2605,
where the district court relied upon an improper reason to detain
juvenile pending appeal, or where the court was silent as to the
“compelling reasons” supporting a juvenile's detention during his
appeal. See In re Lineberry, 154 N.C. App. 246, 256, 572 S.E.2d
229, 236 (2002); In re Bullabough, 89 N.C. App. 171, 184, 365
S.E.2d 642, 649 (1988). As in Lineberry, we “vacate the order
continuing juvenile's custody pending appeal and remand the case to
the trial court” in order to allow the trial court to place in
writing, as required by the statute, the compelling reasons for
juvenile's detention. Lineberry, 154 N.C. App. at 256, 572 S.E.2d
at 236. Such findings may appear on the face of the temporary
order affecting the custody or placement of the juvenile such as
that entered in the instant case by the trial court or may be
incorporated by reference to the dispositional order. We
reiterate, however, that this error does not affect the underlying
adjudication or disposition order. In re Lineberry, 154 N.C. App.at 256, 572 S.E.2d at 236; In re Bullabough, 89 N.C. App. at 184,
365 S.E.2d at 649.
In summary, the district court's disposition in this cause was
not affected by its subsequent decision to deny juvenile release
pending appeal, and the dispositional order is affirmed. However,
due to the court's failure to enter findings as required by N.C.
Gen. Stat. § 7B-2605, we vacate the court's order continuing
juvenile's detention pending appeal and remand juvenile's case to
the trial court for proceedings not inconsistent with this opinion.
Affirmed in part, vacated in part.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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