An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1216


Filed: 5 April 2005

IN THE MATTER OF: T.B.M.            Gaston County
                                No. 00 J 208

    Appeal by juvenile from order entered 6 May 2004 by Judge John K. Greenlee in Gaston County District Court. Heard in the Court of Appeals 14 March 2005.

    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. 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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