No. Coa07-1173Nineteen C Judicial District
1
NO. COA07-1173NINETEEN C JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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IN THE MATTER OF: )
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K.D.A. )From Rowan County
)(06 JB 223)
A minor child)
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Defendant-Appellant.)
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QUESTION PRESENTED
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I. DID THE TRIAL COURT ERR IN FAILING TO ENTER A DISPOSITIONAL ORDER THAT COMPLIES WITH N.C. GEN. STAT. § 7B-2512?
STATEMENT OF THE CASE
On November 7, 2006, two juvenile delinquency petitions were filed against the Juvenile, K.D.A. (“Kevin” for the purposes of this brief) which charged: (1) second degree sexual offense, a misdemeanor, pursuant to N.C. Gen. Stat. § 14-27.5; and (2) indecent exposure pursuant to N.C. Gen. Stat. § 14-190.9, also a misdemeanor. (R pp 3-6)
A hearing was held on those petitions on January 12, 2007 before the Honorable Charlie Brown, District Court judge presiding. (R p 12) Judge Brown adjudicated Kevin guilty on the charges in both petitions, but continued disposition until March 9, 2007. (R pp 12-13)
The Court entered its dispositional order on March 12, 2007 with respect to the charge of second degree sexual offense. [1](R pp 50-53) Kevin filed and served a notice of appeal to the dispositional order on March 9, 2007. (R pp 59-60) The Record on Appeal was filed in the Court of Appeals on September 25, 2007 and docketed on September 26, 2007.
STATEMENT OF THE BASIS OF APPELLATE REVIEW
Kevin appeals from a final dispositional order of the Juvenile Court pursuant to N.C. Gen. Stat. § 7B-2602(3). He is a proper party to appeal under N.C Gen. Stat. § 7B-2604(a).
STATEMENT OF FACTS
The alleged victim of the sexual assault and indecent exposure charges was thirteen at the time of the hearing. (T1[2] p 3) “Lindsey”[3] attends school with Kevin. (T1 p 4) Both are in the eighth grade. (T1 pp 3-4)
The children knew each other prior to the date of the offence. Lindsey admitted that she gave Kevin her telephone number and that they had talked on the telephone outside of school. (T1 pp 7-8) On occasion, Lindsey sent Kevin “letters.” (T1 p 7)
Lindsey testified that on September 29, 2006, she and Kevin were seated next to each other during a “silent lunch” in Miss Dorsett’s science class. (T1 p 4) She told the Court that Kevin “started fondling me,” which she defined as “taking his hands and moving it towards my privates.” (T1 p 4) In response to the question, “Did he actually touch your privates?” Lindsey responded that, yes, Kevin touched her “privates” “two or three” times. (T1 p 5) Then, about “three to five minutes later,” Kevin “sort of had his zipper undone.” (T1 p 6) Lindsey stated that Kevin did not have his penis out, but “you could see it.” (T1 p 6)
When asked by the State, “what did you do then?” Lindsey answered: “I sort of just like shoved my books off the desk and then I just sat there.” (T1 p 6) Although, according to Lindsey the books fell off the desk, the teacher did not appear to notice. (T1 p 6) During her next class she told “Miss Matthews” (presumably her teacher) that she “would like to go see Officer Criuse.” (T1 p 6) She reported the incident to him. (T1 p 7)
An acquaintance of Lindsey’s, “Beth” (not her real name), testified that she heard Kevin say to Lindsey: “Do you want to see something?” She heard Lindsey say, “No.” (T1 p 9) She described the other events she witnessed—-from a distance of approximately ten feet--as follows:
When we got to Ms. Matthews’ class, ...[Lindsey] sits across the room, and he sits next to her in class, and I seen him messing with her and laughing, and she’s like turning away; and I didn’t really see anything, but he was like leaning back, lifting up his shirt, and I told her she needed to go to the guidance counselor; and she decided she wanted to go to Mr. Cruise, so we went to go see him. (T1 pp 10-11)
In response to the question, “Did you ever see Mr. Allen’s private parts?” Beth answered, “No.” (T1 p 11) Beth acknowledged that neither she nor Lindsey ever told a teacher about these events. (T1 p 11)
Danielle Dorsett, the teacher in the class in which the events alleged occurred, testified that her class contained twenty-two students and that the desks were arranged in “seven pods of four.” (T1 p 12) Kevin’s pod contained, in addition to Kevin, Lindsey and two other students. (T1 p 12) On the day in question, Ms. Dorsett was “conducting a lab” in her science class. (T1 p 13) She testified that she “would have been in the center of all those pods.” (T1 p 13) She does not recall that day as a “silent lunch day,” as Lindsey testified. (T1 p 15)
Ms. Dorsett testified that she never left the classroom during that class and that, she “was never aware that there was any problem outside of them talking.” (T1 13) No student appeared to be upset or told her that they were upset. (T1 18) In response to the State’s question of whether it was “possible” that “something else might have been going on,” Ms. Dorsett answered that, it was possible. However, she made the following observation:
This is an extremely active class. If something like that had happened, it would cause a wave reaction. (T1 p 18)
Another student at the same pod as Lindsey and Kevin, “Emma,” testified that she did not see Kevin expose his penis. (T1 p 20) In response to the question, “Did you see anything,” she answered, “No.” (T1 p 20) She responded, “no” to the questions of whether she had seen Kevin “grab” Lindsey’s “private parts” or “buttocks.” (T1 p 20)
At the dispositional hearing, the Court considered the court counselor’s report and a sex-offender evaluation. (R pp 18-43)
ARGUMENT
I.STANDARD OF REVIEW
The sole issued addressed involves whether the Trial Court erred in failing to follow the statutory mandate of express, written findings of fact in juvenile dispositional orders. N.C. Gen. Stat. § 7B-2512 requires the Court to provide written findings of fact. Failure to follow a statutory mandate is reversible error, per se. In re Eades, 143 N.C.App. 712, 713, 547 S.E.2d 146, 147 (2001).
I. THE TRIAL COURT ERRED IN FAILING TO ENTER A DISPOSITIONAL ORDER THAT COMPLIES WITH N.C. GEN. STAT. § 7B-2512
Assignment of Error No. 1; R. pp. 50-53 and 78
N.C. Gen. Stat. § 7B-2512 provides as follows:
The dispositional order shall be in writing and it shall contain appropriate findings of fact and conclusions of law. The Court shall state with particularity both orally and in the written order of disposition, the precise terms of the disposition including the kind, duration, and the person who is responsible for carrying out the disposition and the person or agency in whom custody is vested. (emphasis added).
The Trial Court’s Order of Disposition is in writing, but it contains inadequate findings of fact. There are only two findings:
1. The juvenile’s delinquency history is low.
2. The Court has reviewed and considered the predisposition report, risk report and needs assessment. (R p 50)
The second finding of fact is not even a finding of fact as it means only that the Court has reviewed the documents listed. It fails to reveal the Court’s findings about those documents.
There are no findings of fact showing that the Court considered the mandatory requirements of N.C. Gen. Stat. § 7B-2501 which reads, in relevant part, as follows:
(c) In choosing among statutorily permissible dispositions, the court shall select the most appropriate disposition both in terms of kind and duration for the delinquent juvenile. Within the guidelines set forth in G.S. 7B-2508, the court shall select a disposition that is 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 responsible;
(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.
The Court’s dispositional order fails to make written findings of fact addressing any of the factors set forth in that section.[4] The Court entered a Supplemental Order to Parent Guardian of Custodian of Undisciplined or Delinquent Juvenile. (R pp 56-57) That Order directs Kevin’s mother and father to take certain actions, but it also fails to contain findings of fact.
It would appear that the Court did not even make findings of fact orally following the dispositional hearing. (T2 pp 2-11) The transcript does not reveal findings of fact. However, the quality of the transcript is poor, with several notations of “inaudible” by the transcriptionist. (T2 pp 2-11) Even if the Court had made oral findings of fact, the applicable statutes require the findings to be written in addition to oral. Matter of Bullabough, 89 N.C.App. 171, 179, 365 S.E.2d 642, 647 (1988)(Court held that oral findings could be made in open court in juvenile delinquency proceeding if the order is subsequently reduced to written form).
Where a statute mandates consideration of certain factors, the record must reflect compliance with that statute. See generally, In the Matter of Kenyon, N., 110 N.C.App. 294, 429 S.E.2d 447 (1993). In Kenyon, the Court reversed where the record did not affirmatively show compliance with another statutory mandate of the juvenile code in a delinquency proceeding. Although Kenyon was decided prior to the 2003 amendments to the current Juvenile Code, no reason appears to depart from its rationale. In the 2004 decision of In re T.E.F., 167 N.C.App. 1, 6-7, 604 S.E.2d 348, 351-352 (2004), aff’d, 359 N.C. 750, 614 S.E.2d 296 (2005), the Court cited Kenyon as authority that failure to show compliance with a statutory mandate requires reversal. Similarly, in In re Lambert-Stowers, 146 N.C.App. 438, 552 S.E.2d 278 (2001), the Court reversed a juvenile order where it did not state the applicable burden of proof as required by the juvenile statutes. Although Lambert-Stowers addresses a different section of the Juvenile Code than that now before the Court, its analysis is controlling. Like the trial court in Lambert-Stowers, it is possible that the trial court, here, actually considered all mandatory factors under N.C. Gen. Stat. § 7B-2501(c); however as in Lambert-Stowers, it is not possible to determine whether it did. For that reason, reversal is required.
This case is similar to In re Ferrell, 162 N.C.App. 175, 589 S.E.2d 894 (2004) in which this Court reversed a juvenile dispositional order awarding custody of a delinquent juvenile to his father where the Court failed to make written findings of fact that showed the basis for its change of custody. That Court held that “the findings of fact in the dispositional order do not support the trial court’s decision to transfer custody of the juvenile from the mother to the father.” Id., 162 N.C.App. at 177, 589 S.E.2d at 895.
Case law is well settled that failure to follow a statutory mandate requires reversal. See, generally, In re Eades, 143 N.C.App. 712, 713, 547 S.E.2d 146, 147 (2001), and, In re Wade, 67 N.C.App. 708, 313 S.E.2d 862 (1984). Here, the Court violated the express language of N.C. Gen. Stat. § 7B-2512 and failed to show compliance with the mandatory analysis of N.C. Gen. Stat. § 7B-2501(c). Appellant respectfully requests reversal of the Trial Court’s dispositional order.
CONCLUSION
For the reasons and authority set forth above, the Appellant respectfully requests that this Court reverse the Order of Disposition Trial Court.
This the 3rd day of December, 2007.
Mercedes O. Chut
Attorney for Appellant
N.C. Bar no. 17916
201 W. Market Street
Greensboro, NC 27401
(336) 274-0352
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing brief and appeal information statement on counsel for the State by placing a copy thereof in an envelope, first-class postage prepaid and placing said envelope in the United States Mail, addressed as set forth below. I have on this day filed the brief and appeal information statement by mailing (first-class mail) the originals of these documents to the Clerk of the North Carolina Court of Appeals as set forth below:
Ms. Judith Tillman
Assistant Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
filed:
Mr. John H. Connell
Clerk, North Carolina Court of Appeals
P.O. Box 2779
Raleigh, NC 27602-2779
This the 3rd day of December, 2007
Mercedes O. Chut
[1] The Record contains no information about the disposition of the indecent exposure charge. That disposition was also continued to March 9, 2007, but the Court did not address it on that date. No continuance of the disposition of that charge appears in the Record.
[2] There are two trial transcripts: One from the hearing on January 12, 2007 and one from the hearing on March 9, 2007. The January transcript is “T1;” the March Transcript is “T2.”
[3] Not her real name.
[4] There is a paragraph 5 of the pre-printed AOC form that the Court used that reads: “Other findings” “(State any findings regarding the seriousness of the offense(s); the need to hold the juvenile accountable; the importance of protecting the public; the degree of the juvenile’s culpability; the juvenile’s rehabilitative and treatment needs; and available and appropriate resources.” That paragraph and the space provided for these facts is left blank on the Disposition and Commitment Order. (R p 50)