IN THE MATTER OF:
D.K.L.,
Juvenile
Onslow County
No. 04 J 130
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).
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