Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1269

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

IN RE: J.P.M.,

    A Juvenile.                Mecklenburg County
                            No. 05 JB 230

    Appeal by respondent juvenile, J.P.M., from an order entered 15 May 2006 by Judge Louis A. Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, attorney for the State.

    Bryan Gates, attorney for respondent-appellant.

    MARTIN, Chief Judge.

    Respondent juvenile appeals from an order of the district court finding him in violation of his probation and committing him to a Youth Development Center.
    On 10 March 2005, a juvenile petition was filed alleging that respondent had committed breaking and entering. On 4 April 2005, respondent was adjudicated as delinquent upon his admission to the breaking and entering charge. Respondent was sentenced at a Level 1 disposition and given six months of probation. On 11 May 2005, additional juvenile petitions were filed against respondent alleging injury to personal property, larceny and possession of stolen goods. The charges of injury to personal property and larceny were dismissed, but respondent admitted to the charge ofpossession of stolen goods. The trial court ordered a Level 2 disposition, imposed a suspended fourteen-day sentence, continued respondent's probation for nine months and ordered respondent to pay restitution.
    On 10 October 2005, the State filed a motion for review alleging that respondent had violated his probation by failing to attend school for seven days and for violating his curfew. Upon respondent's admission to the alleged probation violations, the trial court, imposing a Level 2 disposition, changed his curfew to 6:00 p.m. and required him to serve seven days detention with seven days suspended.
    On 15 December 2005, another juvenile petition was filed alleging that respondent had committed larceny and possession of stolen goods. Upon respondent's admission to the charges, the trial court imposed a Level 2 disposition, imposed a suspended sentence of fourteen days of detention and extended respondent's probation by three months.
    On 4 May 2006, the State filed a motion for review alleging that respondent had again violated his probation by missing seven days of school. Following a hearing on 15 May 2006, the trial court found that respondent had violated his probation based on respondent's admissions. While the State recommended a Level 2 disposition in its predisposition report, the trial court entered a Level 3 disposition and committed respondent to placement in a training school. The period of time for which respondent was committed is not included in either the order on the motion forreview or in the disposition and commitment order. However, the trial court did state at the hearing that respondent was to be committed “for an indefinite period of time up to his eighteenth birthday.” On 24 May 2006, respondent filed a notice of appeal from these 15 May 2006 orders.
    On 6 June 2006, the trial court ordered that respondent remain committed at the Youth Development Center pending his appeal. This order also stated that the period of time for respondent's commitment was to be “no less than six months and no more than his 18th birthday.”
    Respondent contends on appeal that the trial court's written orders fail to comply with N.C.G.S. § 7B-2512. Specifically, respondent asserts that the trial court failed to make adequate factual findings and conclusions of law to support its determination that he violated his probation or to support its decision to impose the Level 3 disposition of commitment to training school.
    We first address respondent's contention that findings in the order on the motion for review are insufficient to support the trial court's conclusion that respondent violated the terms of his probation. In the order, the trial court made the following two findings of fact:
        1. The juvenile, appearing with counsel, freely and voluntarily ADMITS the allegations in the following Motion(s) for Review:
        MOTION(S) FOR REVIEW:     Filed: 10/10/2005.

        2. As a result of the juvenile's admission and the Court finding a factual basis for the admission, the Court further finds by thegreater weight of the evidence that the juvenile has violated his/her probation.

In the State's motion for review referenced by the trial court, the State alleged that respondent's failure to attend schools violated a condition of his probation.
    This Court has previously held that a finding that a juvenile has violated his probation in the manner set forth in the State's verified motion for review, constitutes a sufficient finding of fact to support a conclusion that the juvenile had violated his probation. See In re D.J.M., __ N.C. App. __, __, 638 S.E.2d 610, 611 (2007) (affirming probation revocation where trial court found that a delinquent juvenile had admitted the allegations of probation violation “as alleged” in State's motion for review); see also State v. Henderson, __ N.C. App. __, __, 632 S.E.2d 818, 822 (2006) (holding that in adjudicating allegations of probation violation, trial court's findings of fact are sufficient when they “incorporate[ ] by reference” State's probation violation report); In re O'Neal, 160 N.C. App. 409, 412-13, 585 S.E.2d 478, 481 (holding that the trial court is required to find only that the juvenile violated the conditions of his probation), disc. review denied, 357 N.C. 657, 590 S.E.2d 270 (2003). Accordingly, we hold the trial court's findings and conclusions were sufficient to support its determination that respondent violated probation.
    We next turn to respondent's argument that the trial court failed to enter adequate findings and conclusions of law in support of its decision to enter a Level 3 disposition and commitrespondent to training school. Specifically, respondent asserts that the trial court was required to include in its written disposition order “appropriate findings of fact and conclusions of law” in accordance with N.C.G.S. §7B-2512. Respondent further asserts that, pursuant to N.C.G.S. § 7B-2501(c), these findings must reflect the trial court's selection of a disposition 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 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). The State responds that probation violation proceedings are governed exclusively by N.C.G.S. § 7B- 2510 and that the requirements of §§ 7B-2501(c) and 2512 apply only to “initial disposition orders.”
    The State is correct that the statutory provisions that govern juvenile probation violations are found at N.C.G.S. § 7B-2510(d)- (f). Upon a finding of a probation violation, § 7B-2510(e) authorizes the trial court to:
        continue the original conditions of probation, modify the conditions of probation, or, except as provided in subsection (f) of this section, order a new disposition at the next higher level on the disposition chart in G.S. 7B-2508. In the court's discretion, part ofthe new disposition may include an order of confinement in a secure juvenile detention facility for up to twice the term authorized by G.S. 7B-2508.

Thus, upon finding that a juvenile has violated the conditions of his probation, the statute authorizes the trial court to select from several options, including the entry of a new disposition.
    The State has failed to cite, nor do we find, any authority for its position that a disposition entered upon a probation violation is not subject to the general statutory provisions governing juvenile delinquency dispositions. We have consistently held that juvenile probation revocation proceedings are dispositional. See, e.g., In re O'Neal, 160 N.C. App. at 412-13, 585 S.E.2d at 480-81 (holding that issues of double jeopardy did not apply to a probation violation hearing because they are dispositional hearings); see also In re D.J.M., __ N.C. App. at __, 638 S.E.2d at 613 (holding that a juvenile probation violation hearing is a form of dispositional hearing such that the statute setting out conditions under which a court may accept admissions by a juvenile did not apply to admission by juvenile that he violated conditions of probation). It is often the case that a trial court is faced with a series of dispositional decisions in a single juvenile case. Frequently, as in the case sub judice, such subsequent dispositional determinations must be made in response to the juvenile violating the conditions of his probation. The purpose of Article 25 of the Juvenile Code which governs dispositions is “to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction, includingthe protection of the public. N.C. Gen. Stat. § 7B-2500. Moreover, the trial court is charged with developing a disposition in each case that:
        (1)    Promotes public safety;

                (2)    Emphasizes accountability and responsibility of both the parent, guardian, or custodian and the juvenile for the juvenile's conduct; and

                (3)    Provides the appropriate consequences, treatment, training, and rehabilitation to assist the juvenile toward becoming a nonoffending, responsible, and productive member of the community.

Id. Such purposes are no less applicable in a disposition following a probation violation than in an initial disposition immediately following a delinquency adjudication. Accordingly, the State has failed to support its contention that the provisions of N.C.G.S. §§ 7B-2501(c) and 2512 do not apply to a trial court's disposition following a probation violation. See, e.g., In re T.B., __ N.C. App. __, __, 631 S.E.2d 857, 859 (2006) (noting that the trial court did not make any findings in accordance with N.C.G.S. § 7B-2512 to support a Level 3 disposition of commitment following the juvenile's probation violation).
    While we acknowledge that the trial court has discretion in determining the proper disposition, the trial court must “select the most appropriate disposition both in terms of kind and duration for the delinquent juvenile,” N.C. Gen. Stat. § 7B-2501(c), and this choice must be adequately supported by findings of fact and conclusions of law. N.C. Gen. Stat. § 7B-2512; In re Ferrell, 162 N.C. App. 175, 177, 589 S.E.2d 894,895-896 (2004) (holding that thetrial court abused its discretion in failing to make findings of fact in the dispositional order supporting the change of custody from mother to father).
    Here, neither the trial court's order on the motion for review nor the disposition and commitment order satisfy the statutory requirements. With the exception of the two factual findings related to respondent's probation violation set out in our discussion above, the form order entered by the trial court following the hearing on the motion for review contains only one additional finding:
        The Court finds that the criteria for secure custody has been met according to N.C. Gen. Stat. § 7B-1903(b), (c) or (d) and the Court is directing the following person(s) to assume custody of the juvenile: Department of Juvenile Justice and Delinquency Prevention.

Aside from these three, pre-printed factual findings marked by the trial court, the only other substantive entry states that “juvenile is committed to Level 3 training school.”
    Further, the “Juvenile Level 3 Disposition and Commitment Order” entered by the trial court contains only two findings: “The juvenile's delinquency history is high” and “[t]he Court received and considered a predisposition report.” This form order contains no further factual findings, nor did the trial court check the box indicating that it was incorporating the factual allegations in the predisposition report.
    Not only does this disposition order fail to make appropriate findings of fact, the remaining space on the form allocated toconclusions of law and the entry of the order provisions are completely blank. As such, this order not only fails to set forth legal conclusions, but even fails to specify the terms of the order, including the duration of respondent's commitment.
    In conclusion, neither of the trial court's orders contain appropriate findings of fact or conclusions of law as required by N.C.G.S. § 7B-2512 such that this Court can determine whether the trial court adequately considered the relevant factors specified by N.C.G.S. § 7B-2501(c). Consequently, we affirm the trial court's order finding that respondent violated his probation, but reverse the dispositional order and remand for a new dispositional hearing.
    Affirmed in part, reversed in part and remanded for a new dispositional hearing.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***