IN THE MATTER OF: Pitt County
P.A.B. No. 05 JB 229
Attorney General Roy Cooper, by Assistant Attorney General
Lisa H. Graham, for the State.
Lisa Skinner Lefler for respondent-appellant.
ELMORE, Judge.
On 9 December 2005, the juvenile court entered an order
adjudicating P.A.B. delinquent for injuring the personal property
of another and entered a disposition order placing P.A.B. on
probation and ordering him to pay restitution. P.A.B. appeals from
the disposition order only. On 3 July 2006, P.A.B. filed a
petition for writ of certiorari with this Court. For the reasons
discussed below, we dismiss the petition for writ of certiorari as
moot and we vacate, in part, and affirm, in part, the disposition
order.
On or about 3 October 2005, a juvenile petition was filed
alleging that P.A.B., age 9, was delinquent in that he “did
unlawfully, wantonly and willfully injure [the] personal property”
of Fred Suggs in violation of N.C. Gen. Stat. § 14-160. Thepetition further alleged that P.A.B. injured two vehicles owned by
Mr. Suggs “by busting out all of the windows, painting a Blue
stripe completely around the vehicle[s] and smearing oil/grease on
the exterior of the vehicle[s].”
The adjudication and disposition hearings were held on 1
November 2005. At the adjudication hearing, P.A.B. admitted that
he committed the acts alleged in the petition. The trial court
accepted P.A.B.'s admission and adjudicated him delinquent.
At the disposition hearing, the trial court was informed that
P.A.B. was too young to participate in Pitt County's Community
Service Restitution Program. After rendering its order requiring
P.A.B. to, inter alia, make restitution to Mr. Suggs by paying
$25.00 per month for eight months, for a total restitution amount
of $200.00, the trial court inquired about the ability of P.A.B.'s
parents to pay the restitution. The trial court was informed that
P.A.B.'s mother received disability payments in the amount of
$579.00 per month and P.A.B.'s father earned $50.00 per day as a
mechanic.
After the trial court rendered its order in open court,
P.A.B., through his counsel, gave oral notice of appeal. On 2
November 2005, P.A.B. filed a written notice of appeal from the
trial court's disposition order. The trial court's disposition
order was reduced to writing and entered on 9 December 2005. On 3
July 2006, P.A.B. filed a petition for writ of certiorari with this
Court
as an alternative basis for appellate review in the event
this Court determined that
P.A.B.'s appeal should be dismissed forfailing to properly give notice of appeal from the disposition
order.
We first address whether P.A.B. properly gave notice of appeal
from the disposition order. Section 7B-2602 of the North Carolina
General Statutes provides in relevant part:
Upon motion of a proper party as defined in
G.S. 7B-2604, review of any final order of the
court in a juvenile matter under this Article
shall be before the Court of Appeals. Notice
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.
N.C. Gen. Stat. § 7B-2602 (2005). Here, P.A.B., through counsel,
gave oral notice of appeal in open court at the time of the
hearing. P.A.B. also gave written notice of appeal on 2 November
2005, the day after the disposition order was rendered in open
court. Because we conclude P.A.B. properly and timely gave notice
of appeal from the disposition order, we dismiss the petition for
writ of certiorari as moot.
In P.A.B.'s sole assignment of error, he contends that the
trial court erred by ordering him to pay restitution. In support,
P.A.B. argues that the trial court failed to make any findings of
fact or conclusions of law showing the following: (1) restitution
is in his best interest; (2) he has the ability to pay restitution;
or (3) it was fair and reasonable for him to pay restitution.
Further, P.A.B. asserts that the trial court incorrectly considered
the ability of his parents to pay restitution.
Juvenile dispositions in delinquency proceedings are
controlled by N.C. Gen. Stat. § 7B-2500 et seq. Once a juvenilehas been adjudicated delinquent, the juvenile court is required to
“select the most appropriate disposition,” one that is designed to
“protect the public and to meet the needs and best interests of the
juvenile,” based on a list of enumerated statutory factors. See
N.C. Gen. Stat. § 7B-2501(c) (2006). Pursuant to Section 7B-2506
of the North Carolina General Statutes, the juvenile court is
authorized to require that a delinquent juvenile make restitution.
N.C. Gen. Stat. § 7B-2506(4) (2006). The juvenile court, however,
“shall not require the juvenile to make restitution if the juvenile
satisfies the court that he does not have, and could not reasonably
acquire, the means to make restitution.” Id. Section 7B-2506(4)
emphasizes that the focus of the restitution award should be the
ability of the juvenile, not his parents, to pay restitution. See
In re McKoy, 138 N.C. App. 143, 147-48, 530 S.E.2d 334, 336-37
(2000) (interpreting same provision previously codified at N.C.
Gen. Stat. § 7A-649(2)); In re Heil, 145 N.C. App. 24, 550 S.E.2d
815 (2001). In these cases, this Court determined that the statute
“'does not authorize the juvenile court to consider the parents'
ability to pay restitution when ordering the juvenile to make
restitution to the victim as a condition of [his] probation.'”
Heil, 145 N.C. App. at 31-32, 550 S.E.2d at 821 (quoting McKoy, 138
N.C. App. at 148, 530 S.E.2d at 336).
Here, after learning that P.A.B. was too young to participate
in Pitt County's Community Service Restitution Program, the
juvenile court inquired about the ability of P.A.B.'s parents tomake restitution. In its order, that the juvenile court stated the
following:
That the juvenile is not able to participate
in the Juvenile Restitution Program due his
age [sic] young age of (9) nine. It is
therefore ordered that the juvenile pay $25.00
per month for (8) eight months to Mr. Fred
Suggs based upon the juvenile's parents'
income which consist of his mother's
disability for the amount of $579.00 per month
and his father's job at a garage in which he
makes approximately $50.00 per day.
This order reveals the juvenile court's paramount concern was the
ability of the juvenile's family to pay restitution, not the
juvenile's best interest. Indeed, recognizing that P.A.B. was too
young to participate in the Juvenile Restitution Program, the
juvenile court specifically ordered P.A.B. to pay restitution based
upon his parents' ability to pay. Accordingly, we conclude that
the trial court erred in ordering P.A.B. to pay restitution. See
McKoy, 138 N.C. App. 143, 530 S.E.2d 334 (vacating the special
condition of probation requiring the juveniles to make restitution
where there was insufficient evidence that the juveniles could
reasonably acquire the means to pay restitution in the amount
ordered within twelve months and where the juvenile court
incorrectly considered the ability of the juveniles' parents to pay
restitution); see also Heil, 145 N.C. App. 24, 550 S.E.2d 815
(holding that the juvenile court erred in failing to consider or
make findings concerning whether the restitution award was in the
juvenile's best interest and whether the juvenile, and not his
family, had the ability to pay). For the reasons set forth above, we vacate that portion of the
9 December 2005 disposition order in 05 JB 229 requiring P.A.B. to
make restitution by the payment of $25.00 per month for eight
months. We affirm the disposition order in all other respects.
Vacated in part and affirmed in part.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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