Appeal by juvenile from order entered 12 December 2005 by
Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in
the Court of Appeals 16 November 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Tina Lloyd Hlabse, for the State.
Nancy R. Gaines for defendant-appellant.
(See footnote 1)
a juvenile, appeals from an order of
the district court finding her in violation of her probation,
ordering her to continue to abide by the terms of her probation for
an additional nine months, and placing her in her father's custody.
On appeal, Allison argues that the trial court erred by failing to
find sufficient facts to support either its conclusion that she
violated her probation or its decision to remand Allison to her
We hold that, although the trial court made sufficient
findings of fact to support its conclusion that Allison violated
her probation, it failed to make any findings to support itsdecision to place Allison in the custody of her father rather than
her mother. Consequently, we affirm in part and remand in part for
further findings of fact.
On 31 May 2005, Allison was adjudicated delinquent based upon
her admission to a charge of second degree trespass. The trial
court placed her on probation, imposing a number of conditions,
including that she cooperate with a referral to Area Mental Health
and follow its treatment recommendations. Allison's parents were
also both ordered to comply with the court's disposition order and
cooperate with any professionals or agencies involved with the
On 24 October 2005, the State filed a motion for review
alleging that Allison had violated the terms of her probation by
failing to attend scheduled appointments with her therapist on 6
June, 15 July, 25 August, and 23 September 2005. Although Allison
denied the allegations in the State's motion, her parents did not
attend the scheduled 8 November 2005 hearing and, as a result, the
trial court ordered that Allison be detained until trial pursuant
to N.C. Gen. Stat. § 7B-1903 (2005). The trial court released
Allison into her father's custody two days later.
Following a trial on 12 December 2005, the trial court found
that Allison had violated her probation as alleged in the State's
motion for review. The court extended Allison's probationary
period by nine months, requiring her to continue to abide by thepreviously-imposed conditions, and ordered that Allison remain in
her father's custody. Allison timely appealed from that order.
We note at the outset that the North Carolina Rules of
Appellate Procedure are mandatory. Viar v. N.C. Dep't of Transp.
359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (per curiam).
Consequently, violations of the rules subject a party and a party's
attorneys to sanctions, up to and including dismissal of the
appeal. Id. See also
N.C.R. App. P. 25(b).
The appellate rules require that an appellant's brief include
a "citation of the statute or statutes permitting appellate
review," N.C.R. App. P. 28(b)(4), as well as "a concise statement
of the applicable standard(s) of review for each question
presented," N.C.R. App. P. 28(b)(6). The brief filed by Allison's
appellate counsel contains neither. Additionally, the State notes
that Allison's Appeal Information Statement, required by N.C.R.
App. P. 41, was untimely filed and incomplete.
In this appeal, we choose not to impose a sanction of
dismissal. The violations of the appellate rules have not impeded
our review since it is apparent from the nature of the case that it
is a proper appeal and because the standard of review is well
established. Most importantly, however, dismissal would serve only
to punish a child for the errors of her attorney.
We turn first to Allison's argument that the trial court's
findings of fact were insufficient to support its conclusion thatAllison violated her probation. In juvenile delinquency
proceedings, a disposition order must "contain appropriate findings
of fact and conclusions of law." N.C. Gen. Stat. § 7B-2512 (2005).
The trial court is not, however, required to make written findings
setting out all of the details of its decision-making process. See
Quick v. Quick
, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982)
(court is required to make ultimate findings of fact, but is not
required to include recitations of evidentiary or subsidiary
findings of fact).
In the present case, the trial court found as fact that "[t]he
juvenile is in violation of his/her probation as to the following
MOTION(S) FOR REVIEW Filed: 10-24-05." The State's motion for
review, in turn, stated that Allison's failure to attend scheduled
therapy appointments violated her probationary requirements. While
more specific findings of fact might be preferable, we hold that by
finding that Allison had violated her probation in the manner set
forth in the State's verified motion for review, the trial court
made a sufficient finding of fact to support its conclusion that
Allison had violated her probation. See In re D.J.M.
, ___ N.C.
App. ___, ___, 638 S.E.2d 610, 611 (2007) (affirming probation
revocation where trial court found delinquent juvenile had admitted
the allegations of probation violation "as alleged" in State's
motion for review); In re O'Neal
, 160 N.C. App. 409, 412-13, 585
S.E.2d 478, 481 (court is required to find only that juvenile
violated the conditions of his probation), disc. review denied
N.C. 657, 590 S.E.2d 270 (2003). See also State v. Henderson
, ___N.C. App. ___, ___, 632 S.E.2d 818, 822 (2006) (when adjudicating
allegations of probation violations, trial court's findings of fact
are sufficient when they "incorporate by reference" State's
probation violation report).
We further review the findings of fact to determine whether
they are supported by competent evidence. Pineda-Lopez v. N.C.
, 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.
Here, Allison's prior case manager, Bonita Gail Stredrick,
testified that she discussed the requirement that Allison attend
her scheduled therapy appointments with both Allison and her
mother. Allison's social worker, Candace Killian, testified that
Allison nevertheless missed therapy appointments on 6 June, 15
July, and 23 September 2005. We hold that this is sufficient
competent evidence to support the trial court's finding that, as
alleged in the State's motion for review, Allison missed her
therapy appointments on those dates despite knowing that she was
required to attend them. See State v. Gamble
, 50 N.C. App. 658,
661-62, 274 S.E.2d 874, 876 (1981) (verified probation violation
report constituted competent evidence in support of probation
revocation). Because attending therapy was a condition of
Allison's probation and competent evidence established Allison
violated that condition, the trial court could properly conclude
that Allison had violated her probation.
Allison next argues that the trial court made inadequate
findings of fact to support its order that she remain in her
father's custody. Our Court has held that when, in a juvenile
delinquency case, the trial court elects in a disposition order to
transfer custody of a juvenile from one parent to the other, the
court must make findings of fact to support its decision, including
a finding supported by evidence that it is in the juvenile's best
interests to transfer custody. In re Ferrell
, 162 N.C. App. 175,
177, 589 S.E.2d 894, 895 (2004). See also id
., 589 S.E.2d at 895-
96 ("Since the transfer of custody was not supported by appropriate
findings of fact in the dispositional order, we set aside that part
of the trial court's order changing custody of the juvenile from
his mother to his father.").
This case is materially indistinguishable from Ferrell
record indicates that Allison's mother had primary custody until
Allison was detained when neither parent attended the scheduled 8
November 2005 motion for review hearing, after which Allison was
released to her father's custody. As part of its 12 December 2005
disposition order, the trial court simply stated, without any
explanation, that Allison was to "[r]emain in [f]ather[']s
Although the State argues that Allison's mother was in secured
custody at the time of the probation violation hearing, and,
therefore, that Allison's father was "in a much better position" to
care for Allison, these facts are not reflected in the trialcourt's order. Accordingly, we remand to the trial court for the
entry of further findings of fact to support its decision to
transfer custody to Allison's father. Id.
(remanding when findings
in disposition order did not support trial court's decision to
transfer custody from mother to father).
Affirmed in part; remanded in part.
Judge LEVINSON concurs.
Judge JACKSON concurs in a separate opinion.
Report per Rule 30(e).
NORTH CAROLINA COURT OF APPEALS
Filed: 20 February 2007
IN THE MATTER OF:
No. 05 JB 446
JACKSON, Judge concurring in a separate opinion.
I concur fully with the result reached by the majority,
however I disagree with the majority's analysis regarding our rules
of appellate procedure. As stated by the majority, Viar v. N.C.
Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005) is mandatory,
and violations of our appellate rules will subject a party and a
party's appeal to sanctions. Id. at 401, 610 S.E.2d at 360. I
disagree with the majority's analysis regarding the rules
violations found in the juvenile's appeal. The fact that the rules
violations did not impede our review of the appeal is immaterial,
based upon Viar. Therefore, based upon the violations of our
appellate rules, including the omission of the grounds for
appellate review and the applicable standards of review for each
question presented, I would impose sanctions pursuant to rule 25(b)
of our appellate rules. See N.C. R. App. P. 25(b)( 2006).