Appeal by the juvenile from an order entered 26 September 2006
by Judge Edgar B. Gregory in Alleghany County District Court.
Heard in the Court of Appeals 11 October 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State.
James N. Freeman, Jr., for juvenile-appellant.
BRYANT, Judge.
V.A.L.
(See footnote 1)
(the juvenile) appeals from an order continuing the
juvenile's probation and ordering the juvenile to cooperate with an
out of home placement. For the reasons stated herein, we affirm
the order of the trial court.
Facts and Procedural History
On 4 April 2006, the juvenile was adjudicated a delinquent
juvenile by the trial court, put on probation and ordered to
participate in Project Challenge, which consisted of sixty-five
hours of community service. In July of 2006, the juvenile failedto show up to perform community service as directed by Project
Challenge and the Juvenile Court Counselor filed a Motion for
Review for a probation violation on 28 July 2006.
This matter came on for hearing before the Honorable Edgar B.
Gregory, Judge presiding, at the 12 September 2006 session of
Alleghany County Juvenile Court. During this hearing, the juvenile
admitted to the trial court that the allegations asserted in the
Motion for Review were true. The trial court subsequently entered
an order on 26 September 2006, continuing the juvenile's probation
with the new condition that the juvenile cooperate with an out of
home placement and be placed in detention until this placement is
available. The juvenile appeals.
_________________________
The sole issue the juvenile raises on appeal is whether the
trial court erred in ordering the juvenile to participate in an out
of home placement without designating the out of home placement
because this is an impermissible delegation of authority. We
disagree.
If the trial court finds by the greater weight of the evidence
that the juvenile has violated the conditions of probation then the
trial court “may continue the original conditions of probation,
modify the conditions of probation, or, . . . order a new
disposition at the next higher level on the disposition chart . .
. .” N.C. Gen. Stat. § 7B-2510(e) (2005). However, a trial court
may not delegate its authority to impose these dispositional
alternatives to another person or entity.
In re Hartsock, 158 N.C.App. 287, 292, 580 S.E.2d 395, 399 (2003) (holding “the court, and
the court alone, must determine which dispositional alternatives to
utilize with each delinquent juvenile”).
In
Hartsock, this Court held it was an impermissible
delegation of authority for the trial court to order a delinquent
juvenile to “cooperate with placement in a residential treatment
facility
if deemed necessary by MAJORS counselor or Juvenile Court
Counselor.”
Id. at 289, 580 S.E.2d at 397 (emphasis added).
Similarly, we have held that a new condition of probation ordering
the juvenile to “cooperate with any out of home placement
if deemed
necessary, or if arranged by the Court Counselor, including, but
not limited to, a wilderness program” is an impermissible
delegation of authority.
In re S.R.S., 180 N.C. App. 151, 157, 636
S.E.2d 277, 283 (2006) (emphasis added). However, this Court has
held that an order where a juvenile was to “cooperate and
participate in a residential treatment program as directed by court
counselor or mental health agency” was not an improper delegation
of the trial court's authority, as “[t]he determination of whether
M.A.B. would participate in a residential treatment program was
made by the trial court, but the specifics of the day-to-day
program were to be directed by the Juvenile Court Counselor or
Mental Health Agency.”
In re M.A.B., 170 N.C. App. 192, 194-95,
611 S.E.2d 886, 888 (2005). In
Hartsock and
S.R.S., the trial
court improperly delegated its authority when it left the
determination of whether an out of home placement was
necessary up
to a third party. In
M.A.B., the trial court itself decided it wasnecessary for the juvenile to participate in an out of home
placement, but left the details of that placement up to a third
party.
Here, the trial court ordered the juvenile to continue on
probation with the new condition that the juvenile “shall cooperate
with an out of home placement and be placed in detention until this
said placement is available.” Further, the Juvenile Conditions
form entered 13 September 2006 indicates the trial court ordered
the juvenile to cooperate with placement for nine months in a
residential treatment program “as directed by New River Behavioral
Health Care[,]” and indicated the placement should be at “Timber
Ridge[.]” The trial court did not leave the determination of
whether the out of home placement was necessary to another.
Rather, the trial court ordered the juvenile to cooperate with an
out of home placement and placed the juvenile in detention until
said placement became available. Thus, while the trial court may
have left the specific details of the out of home placement with
New River Behavioral Health Care, the trial court did not delegate
its authority as to which dispositional alternatives were imposed
in the new juvenile order. This assignment of error is overruled.
Affirmed.
Judges STEELMAN and GEER concur.
Footnote: 1