IN RE J.D.S., COA11-185 (N.C.App. 7-19-2011)

714 S.E.2d 275

No. COA11-185North Carolina Court of Appeals
Filed 19 July 2011 This case not for publication

Richmond County No. 09 JB 72.

Appeal by Juvenile from order entered 2 July 2010 by Judge Scott T. Brewer in Richmond County District Court. Heard in the Court of Appeals 8 June 2011.

Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State.
Kevin P. Bradley for Juvenile.

BEASLEY, Judge.

J.D.S. (Juvenile) appeals from an order extending and modifying the terms of his probation. We affirm.

In December 2009, Juvenile was adjudicated delinquent for possession of weapons on school property, and a Level 1 disposition was imposed, which included six months of supervised probation made subject to various conditions. Among the terms specified, Juvenile was not to use or possess controlled

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substances; was to abide by an 8:00 p.m. to 6:00 a.m. curfew when unaccompanied by a parent or guardian; and was to submit to random drug testing. On 19 May 2010, a motion for review was filed, alleging that Juvenile violated his probation by disregarding his curfew on 5 May 2010 and failing to submit to a drug screen on 11 May 2010; however, Juvenile admitted to smoking marijuana. At the 29 June 2010 hearing, Juvenile admitted to the violations as alleged and further detailed in a report submitted by his juvenile court counselor, Robert David. Noting school attendance and mental health as the “known issues” at the time Juvenile was placed on probation, the report also recorded his behavioral incidents at school thereafter. Still, as reflected in the court counselor’s report, Mr. David believed the “the real issues were occurring at home,” and supported his assessment with specific instances, including the following.

As reflected in Mr. David’s report, Juvenile’s mother had stated that “she did not have any control over [her son] and that he did as he pleased.” She further admitted that she had not disclosed her son’s disobedience to any authority until one day when Juvenile did not come home, and she was unable to locate him. She explained her failure to reveal Juvenile’s defiance earlier by saying, “it did not matter because `the system’ does not work.” Mr. David also noted in his report that he had instructed Juvenile’s mother that the parenting classes

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previously ordered by the court “may help her deal with [her son].” She responded, however, “that she was not going to attend the classes because she did not have time.” When Juvenile was referred to the PRI Counseling MAJORS program for substance abuse treatment after admitting to marijuana use, his mother “became upset and began blaming [him] for not having a job, not attending school, costing her time and money due to his behavior.” According to the PRI case manager, Juvenile and his mother failed to appear for at least one appointment. The court counselor concluded that

[s]ince being placed in the Day treatment program, [Juvenile] has had some minor setbacks but for the most part he has complied with his supervision. However, his lack of compliance at home suggest[s] that his mother alone cannot provide the supervision required for [Juvenile] to be successful in this season of his life. Sandhills Alternative mental health agency has acquired a Level II therapeutic foster home in Richmond County. In conjunction with the Day Treatment School, already in place, this will provide 24 hours structured supervision. While [Juvenile] is in placement, the mother will have an opportunity to attend parenting classes as well as other services offered for parents that have juveniles in placement.
In order for [Juvenile] to be successful, he and his mother must cooperate with the appropriate agencies and the orders of the court.

The trial court considered the report and ordered that Juvenile’s current probation be extended seven months; that

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Juvenile and his mother cooperate with the MAJORS program; and that Juvenile be placed in Level II therapeutic foster care. Juvenile’s mother expressed concern about her son’s mental health issues and inquired if the services could be provided at home. The trial court assured her that the therapeutic foster care would address any mental health diagnoses and explained its “inclin[ation] to go with [Mr. David’s] recommendation” because of Juvenile’s mother’s conduct depicted in the report. While acknowledging that “it’s already [been] ordered,” the court counselor requested that the trial court inform Juvenile’s mother “that she’s required to sign for the placement” because “she refused to sign when the placement was presented to her initially.” The trial court told her she was “going to have to sign for it,” stating: “I’m ordering that to be done, and that’s what I think based on review of the file and what I’ve heard here is what’s going to be in the best interest of this young man at this time.” Thus, in addition to extending and modifying Juvenile’s probation, the order entered 2 July 2010 directs Juvenile’s mother “to sign the necessary papers for the therapeutic foster care for [Juvenile].”

On 6 July 2010, Juvenile noticed his appeal, and a hearing was subsequently conducted on the State’s motion “to consider if compelling reasons exist for the [c]ourt to enter a temporary custody [o]rder pending the appeal.” In its written order, the

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trial court concluded that compelling reasons had “been set forth to order placement of [Juvenile] pending [the] appeal” and, accordingly, ordered the placement previously directed to take effect during appeal “to address the needs of [Juvenile].”

Juvenile raises two issues on appeal: (i) whether the trial court properly ordered a parent to sign papers necessary for placement of a juvenile adjudicated delinquent; and (ii) whether it was proper for the trial court to consider the purpose of the appeal when resolving the “compelling reasons” inquiry related to temporary placement of a juvenile during the pendency of appeal.

I.
Juvenile claims the trial court exceeded its authority by ordering his mother to sign papers to facilitate his foster care placement. He argues that “[a] parent signing papers necessary for foster care placement under court order is not a valid consent” and that the trial court exceeded its authority by ordering Juvenile’s mother to consent to a placement that she did not believe was in her child’s best interest. We disagree.

First, Juvenile cites the Criminal Procedure Act to support his consent argument. See
N.C. Gen. Stat. § 15A-221(b) (2009) (“`[C]onsent’ means a statement to the officer, made voluntarily and in accordance with the requirements of G.S. 15A-222, giving the officer permission to make a search”). This definition,

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however, is explicitly limited to the Article in which it appears which deals with search and seizure by consent and is thus inapplicable here. Moreover, while the court counselor stated that Juvenile’s mother was “required to sign for the placement” and the trial court ordered her to do so, Juvenile cites no authority, nor are we aware of any, that mandates parental consent for out-of-home placement ordered by the court or requires the disposition selected by the court to be consistent with the parent’s view of what is in the child’s best interests. In any case, the record does not contain any of the “papers necessary for the foster care placement of [Juvenile]”; thus, we cannot discern the basis for Juvenile’s mother’s signature, whether for consent, acknowledgement or notice of the placement, or otherwise, and have no grounds to assume that her signature was meant to provide consent.

Additionally, the Juvenile Code grants the trial court authority over parents of juveniles adjudicated delinquent for purposes of ensuring compliance with court orders. Specifically, “[t]he court may order a parent, guardian, or custodian to cooperate with and assist the juvenile in complying with the terms and conditions of probation or other orders of the court.” N.C. Gen. Stat. § 7B-2703(b) (2009); see also
N.C. Gen. Stat. § 7B-2706 (2009) (conferring upon the court the power of contempt over a parent “for willfully failing to comply with

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an order of the court” in a juvenile matter).[1] The trial court therefore had the authority to order Juvenile’s mother to sign “any papers” to facilitate the therapeutic foster care placement duly ordered by the court as a condition of Juvenile’s modified probation.

Finally, Juvenile cannot show that he was prejudiced by the trial court’s order that his mother “sign papers.” While the court counselor stated that the same placement had been presented to Juvenile’s mother previously but she refused to sign, there had not been a court order that placement be made prior to the motion for review hearing.[2] Juvenile does not challenge the trial court’s authority to order therapeutic foster placement as a condition of the modified probation imposed upon his violations of the original probationary sentence. Neither is there any indication in the record or in

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the parties’ briefs that the failure of Juvenile’s mother to sign the papers, whether voluntarily or pursuant to court order, would have precluded the court-ordered placement. This argument is therefore overruled.

II.
Juvenile also challenges the trial court’s directive that placement be in effect pending appeal. Specifically, he alleges that the finding that the purpose of his appeal was “to thwart what is in [Juvenile’s] best interests” was an improper consideration in the trial court’s determination as to whether there were compelling reasons not to release him during the appeal.

Under N.C. Gen. Stat. § 7B-2605,

[p]ending disposition of an appeal, the release of the juvenile, with or without conditions, should issue in every case unless the court orders otherwise. For compelling reasons which must be stated in writing, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile or the State.

N.C. Gen. Stat. § 7B-2605 (2009). Here, the trial court conducted an evidentiary hearing and heard arguments of counsel on the State’s motion to determine whether compelling reasons existed to place Juvenile in temporary custody during the appeal. The court found compelling reasons that Juvenile’s release should not issue and ordered temporary placement. Among

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the thirty-four findings of fact, all found “by the highest proof, beyond a reasonable doubt,” the court’s findings include:

13. While on probation [Juvenile] admitted to using marijuana. . . . During this period [Juvenile] resided in the custody of his mother.
14. While on probation [Juvenile] repeatedly violated the terms and conditions of his court ordered curfew. During this period [Juvenile] resided in the custody of his mother.
15. That prior to [J]uvenile being expelled from [school] in the fall of 2009, he had 19 days of unexcused absences or suspensions between September 9 and November 16, 2009. During this period [Juvenile] resided in the custody of his mother.
16. That when [Juvenile] was initially placed on probation [his] mother reported he would not follow rules, associated with negative peers, came and went as he pleased, and on at least one occasion law enforcement had to be called to locate [Juvenile].
17. That the latest report from [Juvenile’s] last school . . . reported that [Juvenile] slept in class constantly, and refused to participate in afternoon activities. During this period [Juvenile] resided in the custody of his mother.
. . . .
19. [Juvenile’s] mother reported that she remained frustrated with his behavior and resisted any direction from her.
20. That in the limited time [J]uvenile has been placed in the Level II facility, no behavioral problems have been reported.
21. The behavioral problems of [J]uvenile

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are only present when he resides with his mother.
22. After receiving the testimony of the mother and having the opportunity to judge the demeanor and credibility of the mother, this [c]ourt believes the mother lacks the ability to provide for the manifest needs of [Juvenile] at this time.
. . . .
25. The mother indicated she would not have pushed [Juvenile] to appeal the decision of the [c]ourt had the [c]ourt ordered placement in a Wilderness Camp.
26. The mother fails to understand that a Wilderness Camp is an even more restrictive level of care than the current therapeutic placement.
27. This appeal is designed to thwart what is in the best interests of [Juvenile] as it is clear the decision to appeal is based on the type of placement and not the placement itself.
28. That since the violation report was filed the mother gave permission to [Juvenile] to [go to] the beach for a week with family friends and without her, and without permission of the [c]ourt counselor in direct violation of [the] initial order.
29. [Juvenile] is now 16 years of age, and if his needs are not met immediately the long term damage to [Juvenile] may be irreparable.

The trial court concluded that there were compelling reasons to place Juvenile in therapeutic foster care pending appeal and ordered “[t]hat the placement of [Juvenile] as previously directed shall be in effect while the matter is appealed so as

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to address the needs of [Juvenile].”

Juvenile objects to Finding of Fact 27 that “[t]his appeal is designed to thwart what is in [his] best interests” and Conclusion of Law 4 “[t]hat the primary purpose of the appeal is to thwart the efforts of the [c]ourt to provide for the best interests of [Juvenile].” He relies on In re Lineberry, 154 N.C. App. 246, 572 S.E.2d 229 (2002), where a finding that the juvenile “consistently expressed entrenched denial which diminishes his amenability to treatment” was deemed improper, as it suggested that the juvenile’s release was denied on that ground Id. at 252, 572 S.E.2d at 234. The trial court had thereby “exposed juvenile to the classic penalty situation of choosing between the privilege against self-incrimination and prolonged confinement,” and the § 7B-2605 order that juvenile remain in custody during appeal based on his “refusal to admit to the offense for which he was adjudicated delinquent violated [his] constitutional right against self-incrimination.”Id. at 255, 572 S.E.2d at 236.

While Juvenile likens his “exercise of the unconditional statutory right to appeal” under N.C. Gen. Stat. §§ 7B-2602 and 7B-2604(a) to invoking the Fifth Amendment right against self-incrimination Lineberry is not analogous. No constitutional right is implicated here, and we note that the statutory right to appeal is not “unconditional” to the extent that it may be

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exercised without consequences. Our Appellate Rules allow for the imposition of sanctions for frivolous appeals “taken or continued for an improper purpose, such as to harass or to cause unnecessary delay,” N.C.R. App. P. 34(a)(2), notwithstanding the party’s appeal of right. Moreover, this Court has interpreted the nearly identical predecessor statute to § 7B-2605 as a safeguard against the ability of “a recalcitrant party [to] frustrate the efforts of the court to provide for her best interests by simply entering notice of appeal.”In re Huber, 57 N.C. App. 453, 459, 291 S.E.2d 916, 920 (1982). Thus, the trial court’s finding that this appeal purported to thwart Juvenile’s best interests substantiates the court’s authority to provide for treatment of juveniles pending appeal and, accordingly, was not an improper consideration.

Even if Finding of Fact 27 was not compelling in itself, the combined effect of the findings overwhelmingly reveals an urgent need to remove Juvenile from his mother’s home in hopes that immediate out-of-home placement might prevent irreparable harm. In addition to the above findings, which clearly correlate Juvenile’s behavioral problems to the lack of structure in his home environment, the trial court found that his mother is unable to meet Juvenile’s needs while he is on probation and is “unwilling to work with any court ordered placements” because she believes the court system does not work;

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and “[i]t is not in [Juvenile’s] best interest to be returned to the home of his mother pending appeal.” The trial court also considered, as an alternative, “requesting a [DSS] investigation to see if [Juvenile] is a dependent juvenile” but resolved that the temporary placement provisions of § 7B-2605 “offer[ed] a less disruptive alternative to provide the level of care that is in the best interests of [Juvenile]” and concluded that his interests will be best served from “place[ment] in therapeutic foster care pending appeal.” Cf. In re K.T.L., 177 N.C. App. 365, 375, 629 S.E.2d 152, 159 (2006) (findings that “it was not in juvenile’s best interest to return home at the present time”; “that it was in his best interest to be placed in a residential treatment facility where he would receive the evaluation and treatment he needed”; “that juvenile’s parents were unwilling to consent to the level of evaluation juvenile needed[;] and that it therefore was necessary that DSS be granted custody of juvenile” were compelling reasons for placement of juvenile in a residential treatment facility pending appeal of his disposition order and the trial court thus properly entered the temporary order).

Here, the trial court’s consideration of the purpose of Juvenile’s appeal was proper, its findings were sufficient compelling reasons to satisfy N.C. Gen. Stat. § 7B-2605, and the trial court did not err in ordering placement of Juvenile

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pending appeal.

Affirmed.

Judges BRYANT and GEER concur.

Report per Rule 30(e).

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