An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1691

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

IN THE MATTER OF:

D.K.L.,
        Juvenile

                        Onslow County
                        No. 04 J 130

    Appeal by juvenile from order entered 27 August 2004 by Judge Carol A. Jones in District Court, Onslow County. Heard in the Court of Appeals 24 August 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gail E. Dawson, for the State.

    Sofie W. Hosford for juvenile-appellant.

    McGEE, Judge.

    D.K.L., a juvenile, appeals from a dispositional order committing him to the Department of Juvenile Justice and Delinquency Prevention (the DJJ) for placement in a youth development center for an indefinite term of at least six months. We affirm.
    Juvenile petitions were filed on 7 May 2004 alleging that D.K.L. was delinquent on the basis of his commission of the offenses of first-degree statutory rape, indecent liberties between children, and two counts of crime against nature. D.K.L. admitted to the offense of first-degree statutory rape at the adjudication hearing on 1 July 2004. Pursuant to a plea agreement, the Statedismissed all remaining charges against him.
    The State's evidence, stipulated by D.K.L., showed that D.K.L.'s mother took D.K.L.'s six-year-old and eleven-year-old sisters to the Onslow Memorial Hospital Emergency Room to be examined because of concerns of sexual molestation. The six-year- old sister stated that she had sexual intercourse with D.K.L. approximately seven times and that she had seen her eleven-year-old sister having sexual intercourse with D.K.L. on two occasions. There were also allegations of oral sex.
    The trial court found that D.K.L. understood his rights, the nature of the charge, and that a Level 3 commitment was the most restrictive disposition that the trial court could impose. The trial court then accepted D.K.L.'s admission and proceeded with a disposition hearing. The trial court asked for recommendations from the State and the court counselor.
    The State expressed concern about D.K.L. being at home with his sisters and recommended that D.K.L. be placed outside of the home. The court counselor recommended strict probation and noted that it was his understanding that D.K.L.'s parents were providing twenty-four-hour supervision of D.K.L. to insure that D.K.L. had no unsupervised contact with his sisters.
    The trial court received additional evidence during the disposition hearing. A predisposition report prepared by the court counselor was presented to the trial court, as well as a psychological evaluation and an ABEL Evaluation for Sexual Interest (the ABEL assessment) administered by Carolina Psychological HealthServices. The predisposition report indicated that D.K.L. had a low risk of future offending and assessed his needs as low. The report also indicated that D.K.L.'s parents had marginal supervision skills and difficulty enforcing rules. The report recommended that D.K.L. be placed on probation for twelve months and be ordered to continue his treatment with the SHARP Adolescent Sex Offender Treatment Program (the SHARP Program), an intensive nonresidential treatment program.
    The psychological evaluation revealed "oppositional-defiant behavioral adjustment particularly in relationship with [D.K.L's] primary caretakers[.]" The evaluation recommended that sex offender treatment should be implemented on a consistent, long-term basis.
    The ABEL assessment showed that D.K.L. scored high on "no consequences to the perpetrator" as a justification for behavior and view on society's degree of acceptance of deviant sexual behavior. The ABEL assessment also showed a moderately high score both for "[i]nterest in a [f]emale [c]hild by [m]utual [c]onsent" and for "[i]ncest with his [s]ister by [m]utual [c]onsent." The "Danger Registry" portion of the ABEL assessment showed "severe concerns" in that D.K.L. agreed "fantasies of sexually touching a female adolescent by force 'turn [him] on.'" The ABEL assessment concluded that, although some of the testing produced normal results, "it is obvious that there is some driving force that caused [D.K.L.], by his own report, to have engaged in some sort of inappropriate behavior with younger females; therefore, thisbehavior should be taken extremely seriously."
    D.K.L.'s mother informed the trial court that D.K.L. was never left alone with his sisters, who attended daycare to avoid being home alone with D.K.L. The sisters were undergoing counseling and dealing "extremely well" with their post-traumatic stress syndrome. D.K.L.'s mother stated that D.K.L. had been living at the Onslow County Youth Shelter but was released after reaching a thirty-day limit there. She explained that, according to the Youth Shelter, D.K.L. could remain in the home as long as the parents had a plan in place to protect the sisters from D.K.L.
    At the close of the evidence, the trial court imposed a Level 3 disposition. The trial court ordered that D.K.L. be committed to a youth development center for an indefinite period of time and that D.K.L. continue with the SHARP Program while committed. The trial court expressed concern that the home environment would not be safe for D.K.L.'s sisters if he were to remain in the home. D.K.L. appeals.
    We first consider the State's motion to dismiss D.K.L.'s appeal for failure to give timely notice of appeal and D.K.L.'s petition for writ of certiorari. Appeals of Article 25 juvenile orders are governed by N.C. Gen. Stat. § 7B-2602 (2003), which provides that "[n]otice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order." In this case, notice of appeal was not given in open court. After the disposition hearing, the trial court entered two disposition orders: one on 1 July 2004 and another on 27 August2004. D.K.L.'s mother filed a notice of appeal pro se on 20 September 2004, more than ten days after the entry of the later order. "It is well established that '[f]ailure to give timely notice of appeal . . . is jurisdictional, and an untimely attempt to appeal must be dismissed.'" In re A.L., 166 N.C. App. 276, 277, 601 S.E.2d 538, 538 (2004) (quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)).
    However, D.K.L. has petitioned this Court to grant a writ of certiorari and to consider the issues raised on their merits. "[A] writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C.R. App. P. 21(a)(1). We grant D.K.L.'s petition for writ of certiorari and therefore deny the State's motion to dismiss the appeal. For the reasons below, we affirm the order of the trial court.
    D.K.L. argues the following assignments of error: (1) the trial court erred in committing D.K.L. to the DJJ without considering any alternatives to commitment; (2) the trial court erred in finding that D.K.L. had not or would not adjust in his own home on probation or while other services were being provided; and (3) the trial court erred in finding that community residential care had already been utilized or would not be successful or was not available. D.K.L. did not argue his final assignment of error in his brief, and therefore it is deemed abandoned. N.C.R. App. P. Rule 28(b)(6).

I.

    By his first assignment of error, D.K.L. contends that the trial court erred in committing him to a youth development center without considering any alternatives to commitment. D.K.L cites In re Robinson, 132 N.C. App. 122, 510 S.E.2d 190 (1999) in support of this assignment. (R. p. 47) However, In Re Robinson was decided under a version of the Juvenile Code that has since been amended. Under the pre-1999 Juvenile Code, commitment to the DJJ could occur only if alternatives to commitment "ha[d] been attempted unsuccessfully or were considered and found to be inappropriate." Id. at 125, 510 S.E.2d at 192 (citing N.C. Gen. Stat. § 7A-652(a) (1998)). However, as our Court explained in 2002:
        For offenses occurring on or after 1 July 1999, courts are no longer bound by the language of former N.C. Gen. Stat. § 7A-646 (1998). Under the new Code, the directives found in former section 7A-646 that the trial court "select the least restrictive disposition" which is appropriate and that "[a] juvenile should not be committed to [a youth development center] or to any other institution if he can be helped through community-level resources" have been deleted. See N.C. Gen. Stat. § 7B-2501(c) (2001). . . . A textual analysis shows a more balanced statutory design emphasizing appropriate dispositions, with some limitations, rather than what had been interpreted as a mandate for the least restrictive alternative under the circumstances. See In re Bullabough, 89 N.C. App. 171, 185-86, 365 S.E.2d 642, 650 (1988).

In re Robinson, 151 N.C. App. 733, 736-37, 567 S.E.2d 227, 229 (2002).
    A trial court is now required by statute to "select the most appropriate disposition" for the juvenile that is designed to both"protect the public and to meet the needs and best interests of the juvenile[.]" N.C. Gen. Stat. § 7B-2501(c) (2003). A trial court's choice must be based upon:
        (1) The seriousness of the offense;

        (2) The need to hold the juvenile accountable;

        (3) The importance of protecting the public safety;

        (4) The degree of culpability indicated by the circumstances of the particular case; and

        (5) The rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.

Id.
    In this case, the trial court accepted D.K.L.'s admission that he committed the offense of first-degree statutory rape, a Class B1 felony. See N.C. Gen. Stat. § 14-27.2 (2003). A Class B1 felony is classified as a violent offense for purposes of calculating a juvenile disposition. N.C. Gen. Stat. § 7B-2508(a) (2003). D.K.L.'s delinquency history was low in that he had no prior adjudications. See N.C. Gen. Stat. § 7B-2507(c) (2003). Given these two factors, the violent offense and low delinquency history, the trial court had authority to impose either a Level 2 or Level 3 disposition. See N.C. Gen. Stat. § 7B-2508(f) (2003).
    Our Court is clear that "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). A trial court's exercise of such discretion will not be disturbed unless the court's ruling "'is so arbitrary that it could not havebeen the result of a reasoned decision.'" Id. (quoting Chicora Country Club v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997)). In this case, the evidence shows the trial court's decision to impose a Level 3 disposition to be a reasoned decision that protects the public and meets the needs and interests of D.K.L. The record shows that the trial court had before it evidence that there were "severe concerns" about D.K.L.'s sexual fantasies of touching young girls by force; that D.K.L. might have had contact with his sisters if left in the home; that D.K.L.'s parents had marginal supervision skills and difficulty enforcing rules; that D.K.L. exhibited "oppositional-defiant" behavior toward his parents; and that D.K.L. could continue his treatment with the SHARP program if committed to a youth development center. D.K.L. has not shown that, in light of this evidence, the trial court's decision to impose a Level 3 disposition amounted to an abuse of discretion. Accordingly, we overrule the first assignment of error.
II.

    D.K.L. next argues that the trial court erred when it made findings of fact not supported by competent evidence. Again, we find no error.
    "[A] dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law." N.C. Gen. Stat. § 7B-2512 (2003). On appeal, our standard of review is whether competent evidence supports a trial court's findings of fact. Pineda-Lopez v. N.C. Growers Ass'n, 151 N.C. App. 587, 589,566 S.E.2d 162, 164 (2002). "If the [trial] court's factual findings are supported by competent evidence, they are conclusive on appeal, even though there is evidence to the contrary." Id. (citing Lagies v. Myers, 142 N.C. App. 239, 246, 542 S.E.2d 336, 341, disc. review denied, 353 N.C. 526, 549 S.E.2d 218 (2001).
     The first finding of fact to which the juvenile assigns error is that "[t]he juvenile has not or would not adjust in his own home on probation or while other services are being provided[.]" The evidence shows the requisite adjustments for D.K.L. would include consistent sex offender treatment, psychological treatment, supervision, behavior modification, and full accountability for his behavior and actions. The record includes evidence that supports the trial court's finding that D.K.L. would not be able to make such adjustments in the home.
    The court counselor's predisposition report showed that D.K.L.'s parents had marginal supervision skills, had difficulty enforcing rules, and failed to react with necessary sanctions when rules were broken. The psychological evaluation of D.K.L. described him as having "ready irritability" and "oppositional- defiant behavioral adjustment particularly in relationship with [his] primary caretakers." There was evidence that, in the past, when D.K.L. was in need of treatment, his parents were unable to overcome his refusal to cooperate. This evidence supports the trial court's finding that D.K.L. would be unable to adjust in the home. Accordingly, this assignment of error is overruled.
    The next finding of fact to which D.K.L. assigns error is that"[c]ommunity residential care has already been utilized or would not be successful or is not available[.]" D.K.L. argues that the trial court heard no evidence about the availability or appropriateness of community residential care. However, testimony by D.K.L.'s mother and the psychological evaluation show that D.K.L. was placed with the Onslow County Youth Shelter following his sister's disclosure and later returned to his home. This evidence clearly supports the trial court's finding that community residential care had been utilized. Accordingly, we overrule this assignment of error.
    We affirm the order of the trial court.
    Affirmed.
    Judges McCULLOUGH and JACKSON concur.
    Report per Rule 30(e).

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