IN THE MATTER OF:
L.S. Durham County
No. 02 J 93
Attorney General Roy Cooper, by Assistant Attorney General
Tracy Curtner, for the State.
Susan J. Hall for respondent-appellant.
MARTIN, Chief Judge.
Juvenile L.S. appeals his Level 3 disposition and commitment
order. For the following reasons, we affirm the trial court's
order.
L.S. was adjudicated delinquent on 12 September 2005, upon a
finding that he committed felony breaking and entering and felony
larceny as alleged in petitions filed 20 July 2005. The trial
court placed L.S. on Level 2 probation for twelve months. On 18
January 2006, court counselor Kathryn Moore (“Moore”) filed a
“Motion for Review” alleging that L.S. had violated his probation
by: (1) not attending school regularly; (2) failing four of his six
classes; (3) not keeping appointments with the Majors Program; (4) not performing any community service; (5) not paying restitution;
(6) not keeping two scheduled office visits; (7) having contact
with juvenile R.C.; and (8) testing positive for marijuana.
At the review hearing, court counselor Moore testified that
records from Neal Middle School showed L.S. had missed 27 days of
school, had 5 tardies and was failing four out of six of his
classes. Moore further testified that L.S. had missed two
scheduled visits with her and that L.S. had tested positive for
marijuana on 10 January 2006. Moore also testified that L.S.'s
grandmother informed her that R.C., another juvenile involved in
L.S.'s gang, had been to the grandmother's house to see L.S. and
that L.S. was in regular contact with R.C. by telephone and by
letter. MAJORS Program counselor Lillian Robinson testified that
L.S. had failed to show up for his two scheduled appointments.
Vaughn Cole, the community service coordinator for the Durham
County Teen Court Restitution program, testified that he attempted
to contact the juvenile by phone and letter, but had never heard
back from him.
The trial court found that L.S. had wilfully violated his
probation and then heard evidence regarding disposition. Moore
recommended training school, “based on his general non-compliance
from September 12th, when he was placed on probation, to today's
date. . . . Everything that I've tried to put in place, everything
that the Court has imposed on him, he's done nothing.” She further
testified that she did not think a mentoring program would help
L.S. because he and his family would not cooperate with theprogram. L.S.'s attorney argued that training school was not the
best alternative for L.S. Based on the testimony and a
predisposition report, the trial court ordered a Level 3
disposition that L.S. be placed in a youth development center for
a minimum period of six months and for a total period of commitment
that is indefinite. L.S. appeals.
In his sole argument on appeal, L.S. contends that the trial
court erred in ordering him to a youth development center when
community based alternatives were not exhausted. L.S. cites In re
Mosser, 99 N.C. App. 523, 527-28, 393 S.E.2d 308, 311 (1990), in
support of his contention. In re Mosser, however, was decided
under the former section 7A-646 which has since been amended.
Juvenile dispositions in delinquency proceedings are now controlled
by N.C. Gen. Stat. § 7B-2500 et seq., which no longer requires the
trial court to select the least restrictive disposition under the
circumstances. See In re Robinson, 151 N.C. App. 733, 736-37, 567
S.E.2d 227, 229 (2002). Under the new Code, the trial court is
required to “select the most appropriate disposition both in terms
of kind and duration for the delinquent juvenile.” N.C. Gen. Stat.
§ 7B-2501(c) (2006). Further, the trial court must choose a
disposition within the guidelines set forth in N.C. Gen. Stat. §
7B-2508 that will protect the public and meet the needs and best
interests of the juvenile. Id. Finally, a trial court's choice
must be based upon:
(1) The seriousness of the offense;
(2) The need to hold the juvenile accountable;
(3) The importance of protecting the public
safety;
(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
assessment.
N.C. Gen. Stat. § 7B-2501(c) (2006).
Here, L.S.'s original classification of punishment for the
underlying criminal offenses were deemed serious, and his
disposition level was a Level 2, Medium, pursuant to the guidelines
set forth in N.C. Gen. Stat. § 7B-2508(f). Based upon his current
disposition Level 2, if the court determined that L.S. had violated
the terms of his probation, it had the authority to “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 in G.S. 7B-2508.” N.C. Gen. Stat.
§7B-2510(e) (2006). The trial court chose to impose the next
disposition level of Level 3, Serious, which allowed for commitment
of the juvenile to training school for an indefinite term of at
least six months. N.C. Gen. Stat. § 7B-2510(e), -2513.
“[C]hoosing between two appropriate dispositional levels is within
the trial court's discretion,” and we will not disturb a trial
court's discretionary choice unless it is “'so arbitrary that it
could not have been the result of a reasoned decision.'” In re
Robinson, 151 N.C. App. at 737, 567 S.E.2d at 229 (citations
omitted). We conclude that the evidence shows that the trial court's
decision to impose a level 3 disposition was the result of a
reasoned decision. In the present case, L.S. associated with others
who were involved in delinquent or criminal activity. The
assessment showed that L.S.'s needs level was medium because, inter
alia, he was functioning below grade level, refused substance abuse
treatment, and needed mental health treatment. L.S. has not shown
that, in light of this evidence, the trial court's decision to
commit him to youth training school amounted to an abuse of
discretion. Accordingly, the trial court properly imposed a level
3 disposition.
Affirmed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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