An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-186


Filed: 1 November 2005

In the matter of:
                                        McDowell County
    B.A.T.                                No. 04 J 22

    Appeal by juvenile from order entered 24 August 2004 by Judge C. Dawn Skerrett in McDowell County District Court. Heard in the Court of Appeals 13 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Allen, for the State.

    Mary Exum Schaefer for defendant appellant.

    McCULLOUGH, Judge.

    Defendant (B.A.T.) appeals from an order of criminal contempt due to oppositional behavior and an adjudication of undisciplined. The court ordered 24 hours' detention for the criminal contempt and 3 months' court supervision for the adjudication of undisciplined. We affirm in part and dismiss in part.

    An undisciplined juvenile petition was filed with the court 30 March 2004 in McDowell County due to B.A.T. failing to attend school for 30 days, 23 of which were unexcused. The petition was first heard 25 May 2004 but was continued until 24 August 2004 to determine whether B.A.T. had “straightened out her truancy issues.”
The evidence tended to show that B.A.T. was registered as a night student at an Alternative Learning Center where she had attendedthe first two days of school and then had not returned. The court, in determining disposition and placement of the child, made several inquiries of the juvenile's mother. Throughout the hearing there was a lot of noise in the courtroom which prevented the transcriber from recording everything that was said and preventing identification of all speakers. At the beginning of the proceeding, before B.A.T was addressed or had herself addressed the court, the trial judge stated: “And, ah, she's going to go to detention today for 24 hours for Contempt of Court for coming to Court dressed like she's dressed with her stomach showing.” This was the first time that the court addressed the issue of appropriate courtroom attire.
    The hearing continued with no mention of B.A.T.'s clothing or an explanation for her attire. Contemporaneously with the contempt of court finding, the court stated that B.A.T. would also receive 3 months' supervision, live with her mother, and go to school every day. The remainder of the hearing was to determine whether B.A.T. would actually live with her mother. During this time, B.A.T. interrupted the judge as well as her mother several times. At the conclusion of the hearing, the district court judge stated, “Well, as I said before, I'm holding her in Contempt of Court for appearing in Court and showing her skin like she's showin', and that's totally disrespectful and that's totally unacceptable . . . with her attitude, maybe a day in detention will change the attitude.” The court then stated that B.A.T. was in custody and concluded the hearing.    While B.A.T. was waiting to be shackled and taken to the Department of Juvenile Justice, her attorney appeared before the court and asked the court to rescind the order. B.A.T.'s attorney argued that the court was required to give a warning of offensive conduct and allow the person to correct the behavior or condition before holding them in contempt of court. B.A.T.'s attorney asked for the judge to allow B.A.T. to obtain appropriate clothing during the court's lunch recess and return for a hearing in which she could be represented by her attorney. The court refused the request of the attorney stating that all she had to afford B.A.T. was an opportunity to be heard on the contempt charges and that she was affording that opportunity through the hearing with her attorney. B.A.T. stated that she had never been to court before and that the clothes she was wearing were the best that she had. The judge did not believe this explanation. The court continued to uphold the finding of contempt and sent B.A.T. to 24 hours of detention.
    An order was entered in district court 24 August 2004 finding B.A.T. in contempt of court for oppositional behavior and an order finding B.A.T. undisciplined and placing her on 3 months' court supervision, to live with her mother, and go to school. There is no evidence in the record that the criminal contempt finding was appealed to the superior court.
    Defendant now appeals.


    Defendant contends on appeal that her due process rights were violated when the court heard the undisciplined petition without counsel present. We disagree.
    The Sixth Amendment guarantees the assistance of counsel “'in all criminal prosecutions.'” In re Walker, 282 N.C. 28, 37, 191 S.E.2d 702, 708 (1972), superseded by statute on other grounds, 67 N.C. App. 708, 313 S.E.2d 862 (1984). However, our Supreme Court has held that “[w]hatever may be the proper classification for a juvenile proceeding in which the child is alleged to be undisciplined, it certainly is not a criminal prosecution within the meaning of the Sixth Amendment which guarantees the assistance of counsel 'in all criminal prosecutions.'” Id. N.C. Gen. Stat. § 7B-2000 sets forth the situations when a juvenile is entitled to counsel. It provides in pertinent part that “[c]ounsel for the juvenile shall be appointed. . .unless counsel is retained for the juvenile, in any proceeding in which the juvenile is alleged to be (i) delinquent or (ii) in contempt of court when alleged or adjudicated to be undisciplined.” N.C. Gen. Stat. § 7B-2000(a) (2003).
    Our Courts have previously determined that in order to afford due process as provided by U.S. Const., Amend. XIV, counsel is required in delinquency proceedings. See In re Garcia, 9 N.C. App. 691, 177 S.E.2d 461 (1970). On the other hand, counsel is not constitutionally required at the hearing on an undisciplined childpetition and the distinction does not amount to a denial of equal protection. See In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972) (stating that allowing a child to be adjudged undisciplined and placed on probation without benefit of counsel, while at the same time requiring counsel before a child may be adjudged delinquent, does not deny equal protection of the laws to the undisciplined child).
    In the instant case, the matter before the court was an undisciplined child petition. Where this Court has held that counsel is not required in such proceedings, the district court judge did not err in allowing the matter before the court to proceed where B.A.T. was not represented by counsel. Therefore, this assignment of error is overruled.
    Next, defendant challenges the order of criminal contempt entered by the district court judge finding that B.A.T. engaged in oppositional behavior. According to N.C. Gen. Stat. § 5A-17, “A person found in criminal contempt may appeal in the manner provided for appeals in criminal actions, except appeal from a finding of contempt by a judicial official inferior to a superior court judge is by hearing de novo before a superior court judge.” N.C. Gen. Stat. § 5A-17 (2003). “Criminal contempt orders are properly appealed from district court to the superior court, not to the Court of Appeals.” Hancock v. Hancock, 122 N.C. App. 518, 522, 471 S.E.2d 415, 418 (1996). Therefore this issue has not been properly appealed and must be dismissed.     Accordingly, we find no error in the district court proceeding on the undisciplined petition without counsel present and dismiss all challenges to the criminal contempt finding where the issues are not properly before this Court.
    Affirmed in part, dismissed in part.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).


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