An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
IN THE MATTER OF:
H.D. Gaston County
No. 04 J 216
Appeal by juvenile from order entered 29 September 2004 by
Judge James A. Jackson in Gaston County District Court. Heard in
the Court of Appeals 2 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Judith Tillman, for the State.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
H.D. (the juvenile) appeals from disposition and commitment
order entered committing him to a youth development center. We
The juvenile was adjudicated delinquent on 30 April 2004 for
attempted second degree sexual offense. He was placed at the Keys
of Carolina, a secure residential treatment facility to receive sex
offender treatment. The juvenile had been previously adjudicated
delinquent on 24 February 2003 for possessing a weapon on
educational property and on 1 April 2003 for injury to personal
property and simple assault.
While at the Keys of Carolina, the juvenile admitted to
program therapist, Mr. Charles Ukaoma (Mr. Ukaoma), that he hadperformed oral and anal sex on a male victim at the YMCA on two
occasions in 2000. The juvenile also informed Mr. Ukaoma that he
had performed oral and anal sex on another boy while he was placed
in a previous group home.
The juvenile was thirteen years old at the time of the
dispositional hearing held on 30 August 2004. Ms. Diane Koch (Ms.
Koch), the juvenile's case manager from Pathways Mental Health,
testified regarding the juvenile's background. Until the age of
three, the juvenile was exposed to a lot of sexual activity and
pornographic material. As a result, the juvenile was removed from
his parents. The juvenile's parents died when he was approximately
three years old. Ms. Koch testified the juvenile's behavior
improved at the Keys of Carolina, which offered the juvenile the
best prognosis of being rehabilitated. Ms. Koch opined that the
Keys of Carolina was one of the two best facilities in the State
for the treatment of juvenile sex offenders.
The State, through the juvenile court counselor, Mr. Walter
Owens (Mr. Owens), recommended the juvenile remain at the Keys of
Carolina. Mr. Ukaoma also recommended the juvenile remain at the
Keys of Carolina for treatment of his predatory sexual deviant
behaviors because it would provide his best chance for
At the conclusion of the hearing, the trial court ordered the
juvenile to be committed to the Department of Juvenile Justice and
Delinquency Prevention for placement in a youth development centerfor an indefinite period of time up to his eighteenth birthday.
The juvenile appeals.
The issues on appeal are whether the trial court erred by:
(1) failing to make competent findings of fact; (2) making
conclusions of law unsupported by the findings of fact; (3) failing
to find the juvenile had extraordinary needs to justify a Level 2
disposition; (4) ordering the juvenile register as a sex offender
when the court made no finding of fact that the juvenile was a
danger to the community; and (5) not releasing the juvenile pending
appeal without making the requisite findings of fact.
III. Findings of Fact and Conclusions of Law
The juvenile argues the trial court failed to make competent
findings of fact in the dispositional order. We disagree.
The dispositional order consists of form AOC-J-462 entitled,
Juvenile Level 3 Disposition and Commitment Order (Delinquent),
and a five-page addendum for additional findings of fact. The
first portion of the addendum recites the Keys of Carolina Master
Treatment Plan/Progress Report filed on 26 July 2004. These
findings of fact merely summarize the Master Treatment
The trial court must find the ultimate facts necessary to
support the conclusions of law by processes of logical reasoning
from the evidentiary facts. In re Anderson, 151 N.C. App. 94, 97,
564 S.E.2d 599, 602 (2002) (citation omitted). Mere recitation of
the Master Treatment Plan/Progress report does not indicate aprocess of logical reasoning was used by the trial court in finding
the facts contained in the dispositional order. Id.
As to the remainer of the addendum, the juvenile argues while
the order does not merely repeat the Master Treatment Plan/Progress
Report, the trial court failed to make competent findings of fact.
The juvenile asserts the trial court only recites the areas in
which it was supposed to make findings of fact as required by N.C.
Gen. Stat. § 7B-2501.
N.C. Gen. Stat. § 7B-2501(c) (2003) states:
In choosing among statutorily permissible
dispositions, the court shall select the most
appropriate disposition both in terms of kind
and duration for the delinquent juvenile.
Within the guidelines set forth in G.S.
7B-2508, the court shall select a disposition
that is designed to protect the public and to
meet the needs and best interests of the
juvenile, based upon:
(1) The seriousness of the offense;
(2) The need to hold the juvenile accountable;
(3) The importance of protecting the public
(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
[T]he trial court's factual findings must be more than a
recitation of allegations. They must be the 'specific ultimate
facts . . . sufficient for the appellate court to determine that
the judgment is adequately supported by competent evidence.'
Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602 (quotingMontgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26,
The trial court found that the juvenile admitted as recently
as 2 March 2004 that he had performed oral and anal sex on two
occasions on a male victim at the YMCA and on another male while
residing in a group home. The court found these offenses to be
extremely serious in nature. See N.C. Gen. Stat. § 7B-
The trial court also stated that it considered the need to
hold the juvenile accountable for these offenses. The court found
that the juvenile had been adjudicated delinquent for attempted
second degree sexual offense on 30 April 2004. The court further
found that the juvenile had been adjudicated delinquent on previous
occasions for injury to personal property, simple assault, and
possessing a weapon on educational property. See N.C. Gen. Stat.
The trial court also considered the importance of protecting
the public. The court found that the second degree sexual offense
for which the juvenile had been adjudicated delinquent occurred in
a public facility. The juvenile also admitted to having performed
oral and anal sex on a male victim on two occasions at the YMCA, a
public facility. See N.C. Gen. Stat. § 7B-2501(c)(3). The trial
court also found that the juvenile presented no evidence that any
other person was involved in committing the offense and presented
no evidence that the victim voluntarily consented to the sexual
conduct. See N.C. Gen. Stat. § 7B-2501(c)(4). The trial court found that the juvenile was in desperate need
of sexual offender specific treatment and such treatment would be
available at the Swannanoa Youth Development Facility, where the
juvenile was committed. Mr. Owens testified that the Swannanoa
Youth Development Facility has treatment for sexual offenders and
that the juvenile would potentially receive counseling while
committed. See N.C. Gen. Stat. § 7B-2501(c)(5). While we
reiterate the need to make specific findings of fact, the trial
court made sufficient findings of fact to support its conclusions
of law pursuant to N.C. Gen. Stat. § 7B-2501. This assignment of
error is overruled.
IV. Dispositional Level
The juvenile argues the trial court abused its discretion in
imposing a Level 3 disposition rather than a Level 2 disposition in
order to commit him to a youth development center. We disagree.
The juvenile court is required to select a disposition that
is designed to protect the public and to meet the needs and best
interests of the juvenile . . . . N.C. Gen. Stat. § 7B-7201(c)
(2003). Here, the juvenile was adjudicated of a violent offense.
The juvenile's delinquency history level was determined to be high
pursuant to N.C. Gen. Stat. § 7B-2507. The juvenile's
dispositional level is Level 3 based on his delinquency history
level and the type of offense he committed. N.C. Gen. Stat. § 7B-
2508(f) (2003). A court shall commit a juvenile with a Level 3
disposition to the Department for placement in a youth development
center. N.C. Gen. Stat. § 7B-2508(e) (2003). However, a courtmay impose a Level 2 disposition rather than a Level 3 disposition
if the court submits written findings on the record that
substantiate extraordinary needs on the part of the offending
juvenile. Id. A Level 2 disposition is primarily a community
based placement and would allow the juvenile to remain in a program
such as the Keys of Carolina. A Level 3 disposition carries
commitment to the Department. Id.
The juvenile asserts that the trial court abused its
discretion by failing to find that he had extraordinary needs to
justify a Level 2 rather than a Level 3 disposition. Witnesses at
the hearing recommended that the juvenile remain at the Keys of
Carolina for treatment.
In In re Robinson, this Court stated:
Once a juvenile is placed in a dispositional
level, the statutes provide dispositional
alternatives which may be utilized by the
trial court. However, in those instances
where there is a choice of 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.
Absent an abuse of discretion, we will not
disturb the trial court's choice. An abuse
of discretion occurs when the trial court's
ruling 'is so arbitrary that it could not have
been the result of a reasoned decision.'
151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002) (emphasis
supplied) (quoting Chicora Country Club, Inc. v. Town of Erwin, 128
N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. rev. denied,
347 N.C. 670, 500 S.E.2d 84 (1998) (quoting White v. White, 312
N.C. 770, 777, 324 S.E.2d 829, 833 (1985))). The trial court
considered the testimonies of Mr. Owens, the juvenile courtcounselor, and Ms. Koch, the juvenile's mental health worker. The
court also considered the report of Mr. Ukaoma, the program
therapist at Keys of Carolina, and the report of Mr. Kenneth
Merritt, the lead teacher at Keys of Carolina. The court
considered the Keys of Carolina treatment plan and progress report.
The trial court stated:
The Court has considered the arguments of
counsel, the recommendations of the juvenile
court counselor and recommendations of the
social worker. The Court does not find that
 is an extraordinary need. Therefore, the
Court makes no written findings - can make no
written findings that substantiate an
extraordinary need. Therefore, the Court, as
mandated by the statute, enters the
It is the sole duty of the trial judge to determine the credibility
of the witnesses, the weight to be accorded to their testimonies,
and to determine which inferences shall be drawn from the evidence.
In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)
(citation omitted). The juvenile failed to show the trial court's
decision was not the result of a reasoned decision to rise to an
abuse of discretion to impose a Level 3 rather than a Level 2
disposition. This assignment of error is overruled.
V. Sex Offender Registration
The juvenile contends the trial court erred in ordering that
he register as a sex offender when the court made no finding of
fact that he was a danger to the community. We disagree.
N.C. Gen. Stat. § 7B-2509 (2003) provides that in any case
where a juvenile who is at least 11 years of age is adjudicated
delinquent for second degree sexual offense, the court may requirethe juvenile to register as a sex offender upon a finding that the
juvenile is a danger to the community. The statute does not
require the court to make written findings that the juvenile is a
danger to the community and the court is not required to use the
specific words danger to the community in its findings. The
record clearly shows the trial court considered the danger the
juvenile poses to the community. At the hearing, the trial court
stated, he's admitted to sexual conduct in public places, so I'm
going to allow that registration. The trial court complied with
the requirements of the statute. This assignment of error is
VI. Release Pending Appeal
By his final assignment of error, the juvenile argues the
trial court erred in ordering the dispositional order would not be
stayed and he would not be released pending appeal of the
dispositional order. We disagree.
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). The juvenile contends the court
made no findings of compelling reasons to enter an order
restricting the release of the juvenile.
The trial court found that the juvenile admitted to having
performed oral and anal sex on two different occasions on a malevictim at the YMCA, a public facility, and to having performed oral
and anal sex on another victim while residing in a group home. The
trial court also found that the juvenile had been adjudicated
delinquent for the offenses of second degree sexual offense, injury
to personal property, simple assault, and possessing a weapon while
on educational property. The trial court specifically found that
the second degree sexual offense occurred in a public facility. No
evidence was presented suggesting that the victim voluntarily
consented to the sexual conduct. These findings are sufficient
compelling reasons to satisfy N.C. Gen. Stat. § 7B-2605. This
assignment of error is overruled.
The trial court made sufficient findings of fact to support
its conclusions of law. The juvenile has failed to show the trial
court abused its discretion in imposing a Level 3 disposition on
him. The trial court did not err in ordering the juvenile to
register as a sex offender or in denying his release pending
appeal. The trial court's order is affirmed.
Judges JACKSON and SMITH concur.
Report per Rule 30(e).
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