{ "id": 8955938, "name": "IN THE MATTER OF DREMONDA EUGENE RIKARD, DOB 5/20/1987", "name_abbreviation": "In re Dremonda Eugene Rikard", "decision_date": "2003-11-04", "docket_number": "No. COA02-1581; No. COA02-1628", "first_page": "150", "last_page": "155", "citations": [ { "type": "official", "cite": "161 N.C. App. 150" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "483 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708491 ], "year": 1997, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0064-01" ] }, { "cite": "550 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435150 ], "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0024-01" ] }, { "cite": "348 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "addressing juvenile's assignment of error that the evidence was insufficient after determining the court failed to make the required finding of fact that the allegations in the petition have been proven" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357976 ], "year": 1986, "pin_cites": [ { "parenthetical": "addressing juvenile's assignment of error that the evidence was insufficient after determining the court failed to make the required finding of fact that the allegations in the petition have been proven" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0046-01" ] }, { "cite": "359 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 164", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358035 ], "year": 1987, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0164-01" ] }, { "cite": "547 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "147" }, { "page": "148" }, { "page": "148", "parenthetical": "requiring a compliant adjudication be evident in the record" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437254 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "713" }, { "page": "713" }, { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0712-01" ] }, { "cite": "291 S.E.2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1982, "pin_cites": [ { "page": "918" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524814 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "455-56" }, { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0453-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 493, "char_count": 12916, "ocr_confidence": 0.772, "pagerank": { "raw": 1.522459658074642e-07, "percentile": 0.669535559795185 }, "sha256": "8fd89008c24a789473fe16cf83cca2f3cd114cdd339bf747d3b6a6bc63c59d84", "simhash": "1:9b283e6372bb3660", "word_count": 2088 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "IN THE MATTER OF DREMONDA EUGENE RIKARD, DOB 5/20/1987" ], "opinions": [ { "text": "CALABRIA, Judge.\nDremonda Eugene Rikard (\u201cjuvenile\u201d) appeals the 10 August 2001 adjudication order entered by Judge Jonathan L. Jones in Catawba County District Court adjudicating him a delinquent juvenile. Juvenile also appeals the 25 January 2002 disposition order entered by Judge Charlie E. Brown in Rowan County District Court ordering probation and enrollment in an outpatient treatment program. Because we find juvenile failed to preserve appellate review of his motion to dismiss, we affirm the adjudication order on this basis. We reverse and remand the adjudication order for correction of the written order to reflect the trial court\u2019s oral findings. Since we find the trial courts exceeded their statutory authority, we vacate the courts\u2019 amended adjudication order and the disposition order since both were entered during the pendency of the appeal.\nOn 19 February 2001, a petition was filed alleging juvenile violated N.C. Gen. Stat. \u00a7 14-202.2, indecent liberties between children. At a 6 August 2001 hearing, the court orally found \u201cbeyond reasonable doubt that the acts alleged in the petition are true.\u201d Juvenile was adjudicated a delinquent juvenile and the court ordered the case transferred to Rowan County, where juvenile resided, for disposition. The adjudication order, filed 10 August 2001, not only lacked the court\u2019s oral finding of fact that the State had proven the case beyond a reasonable doubt, but also lacked any findings of fact regarding the acts alleged in the petition. On 10 October 2001, juvenile filed a notice of appeal.\nOn 16 November 2001, a Rowan County District Court judge examined the 10 August 2001 order. The court was unable to hold a disposition hearing since there was \u201cno delinquent act to dispose of\u2019 since the 10 August 2001 order lacked the requisite written findings stating the acts alleged in the petition had been proven beyond a reasonable doubt. The case was transferred back to Catawba County to include the requisite written findings in an amended adjudication order. Thereafter, on 11 December 2001, the court in Catawba County entered an amended juvenile adjudication order finding beyond a reasonable doubt \u201cthe juvenile did commit the acts alleged in the petition, Indecent Liberties Between Minors . . .\u201d and adjudicating him a delinquent juvenile. The case was transferred back to Rowan County for disposition. The disposition hearing was held 25 January 2002, and the court ordered juvenile to serve twelve months probation and during the probationary period to enroll in an outpatient youthful sex offenders treatment program.\nJuvenile appeals asserting: (I) the Rowan County court lacked jurisdiction to transfer the case back to Catawba County for a modification of its findings of fact, and the Rowan County court lacked jurisdiction to enter a disposition order since the adjudication order was on appeal; (II) the Catawba County court erred in its adjudication by failing to grant juvenile\u2019s motion to dismiss for insufficiency of the evidence.\nI. Jurisdiction after appeal\nWhen no disposition was entered within sixty days of juvenile\u2019s adjudication as delinquent, juvenile appealed the adjudication. However, neither the trial court in Rowan County nor the court in Catawba County ceased action on juvenile\u2019s case. After his appeal, they transferred the case between them, entered an amended adjudication order making necessary findings of fact, held a disposition hearing and entered a disposition order. Juvenile asserts that as of 10 October 2001, when he filed his appeal, the trial courts were divested of jurisdiction. We agree.\nOur statutory law provides juveniles with a right to appeal any final orders of the court. N.C. Gen. Stat. \u00a7 7B-2602 (2001). An adjudication order may be appealed \u201cif no disposition is made within 60 days after entry of the order. .. .\u201d Id. \u201c[W]ritten notice of appeal may be given -within 70 days after such entry.\u201d Id. Pending disposition of the appeal, the statute directs the trial court to release the juvenile, with or without conditions, unless the court delineates, in writing, compelling reasons justifying the entry of \u201ca 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.\u201d N.C. Gen. Stat. \u00a7 7B-2605 (2001). Following \u201cthe affirmation of the order of adjudication or disposition of the court by the Court of Appeals . . . the court shall have the authority to modify or alter the original order....\u201d N.C. Gen. Stat. \u00a7 7B-2606 (2001). Accordingly, nothing in the statute permits the trial court to modify the order or proceed to disposition during the pendency of the appeal of an adjudicatory order.\nNevertheless, the State asserts this Court\u2019s holding in In re Huber, 57 N.C. App. 453, 291 S.E.2d 916 (1982) is controlling. In Huber, during the pendency of an appeal, a district court ordered the removal of a neglected child from her mother\u2019s custody. Huber, 57 N.C. App. at 455-56, 291 S.E.2d at 918. The controlling statute, nearly identical to the statute in the case at bar, permitted the district court to issue \u201ctemporary orders affecting the custody or placement of the juvenile as the judge determines to be in the best interest of the juvenile or the state.\u201d Id., 57 N.C. App. at 459, 291 S.E.2d at 920 (citing N.C. Gen. Stat. \u00a7 7A-668 (1980)). Accordingly, this Court upheld the district court\u2019s custody order. Id.\nIn both Huber and the case at bar, the statut\u00e9 provided for action by the district court to affect the juvenile\u2019s custody or placement. The difference between Huber and the case at bar is manifest. In Huber the court acted pursuant to statutory authority; in the case at bar, the court exceeded its authority. The trial courts here transferred the case between them, entered an amended adjudication order and also entered a disposition order. The State argues that even if the other orders were improper, the disposition order required probation, which, they assert, is a derivative of custody, and therefore that order was proper under the statute. We disagree. Even assuming arguendo that the statutory language \u201ccustody or placement\u201d includes an order for probation, the disposition order relied on the other invalid orders of the trial court, and the disposition order did not comply with the statutory directive requiring compelling reasons in writing from the court justifying its actions and applying best interests analysis. Accordingly, we find the trial court\u2019s orders, entered after juvenile appealed, exceeded its statutory authority under N.C. Gen. Stat. \u00a7 7B-2605, and therefore must be vacated.\nII. The Original Adjudication Order\nOur analysis of the trial courts\u2019 actions exceeding their jurisdiction squarely raises the issue of the effect of the 10 August 2001 written adjudication order that did not contain the required findings of fact. Our statute requires that \u201c[i]f the court finds that the allegations in the petition have been proven as provided in G.S. 7B-2409, the court shall so state.\u201d N.C. Gen. Stat. \u00a7 7B-2411 (2001). Moreover, \u201c[t]his Court has held that use of the language \u2018shall\u2019 is a mandate to trial judges, and that failure to comply with the statutory mandate is reversible error.\u201d In re Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001). The question presented here is whether a trial court\u2019s oral findings suffice even though they are omitted from the written order. We hold oral findings suffice, but the written order must be corrected so the record reflects the finding.\nOur statute requires a judge to \u201cstate\u201d the finding that the allegations in the petition have been proven beyond a reasonable doubt in order to adjudicate a child as a delinquent. N.C. Gen. Stat. \u00a7 7B-2411. There is no requirement that the finding must be in writing. We implied in Eades that \u201cany order, written or oral\u201d making the required finding would suffice. Eades, 143 N.C. App. at 713, 547 S.E.2d at 148. Moreover, we have previously held a court\u2019s failure to make the finding orally at the time of the hearing is not error where the finding was included in the written order. In re Mitchell, 87 N.C. App. 164, 166, 359 S.E.2d 809, 811 (1987). Finally, our statute expressly requires \u201c[t]he dispositional order shall be in writing . . . .\u201d N.C. Gen. Stat. \u00a7 7B-2512 (2001). Accordingly, the legislature required the necessary findings be in writing for the dispositional order but not the adjudicatory order. However, since it is incumbent that the record reflect this finding, we remand for entry of an amended written order including the court\u2019s oral finding that \u201cbeyond [a] reasonable doubt that the acts alleged in the petition are true.\u201d See Eades, 143 N.C. App. at 713, 547 S.E.2d at 148 (requiring a compliant adjudication be evident in the record).\nSince we have found the adjudication order may be corrected to include the oral finding, we must address whether or not the order should be vacated because the Catawba County court erred in failing to dismiss the adjudication order due to insufficient evidence. See In re Walker, 83 N.C. App. 46, 348 S.E.2d 823 (1986) (addressing juvenile\u2019s assignment of error that the evidence was insufficient after determining the court failed to make the required finding of fact that the allegations in the petition have been proven). The court denied juvenile\u2019s motion to dismiss, for insufficiency of the evidence, submitted at the close of the State\u2019s evidence, and juvenile proceeded to present evidence. Juvenile did not renew his motion at the close of all the evidence. \u201c[J]uveniles \u2018may challenge the sufficiency of the evidence by moving to dismiss the juvenile petition.\u2019 \u201d In re Heil, 145 N.C. App. 24, 28, 550 S.E.2d 815, 819 (quoting In re Davis, 126 N.C. App. 64, 65-66, 483 S.E.2d 440, 441 (1997)). \u201cIf a defendant makes [a motion to dismiss for insufficient evidence] after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal ... is waived.\u201d N.C.R. App. P. 10(b)(3) (2003). \u201cSuch a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.\u201d Id. Since juvenile did not renew his motion to dismiss, this assignment of error is overruled.\nAccordingly, we hold the trial court orders entered following the 10 August 2001 adjudication order were entered without jurisdiction and must be vacated. The 10 August 2001 adjudication order is reversed and remanded for correction of the written order to include the required finding which the court stated orally. The 10 August 2001 adjudication order is otherwise affirmed.\nVacated in part, reversed and remanded in part, affirmed in part.\nJudges McGEE and HUNTER concur.\n. Since the State did not hold a dispositional hearing within 60 days of the 10 August 2001 abdication order, the juvenile had a right to appeal this order. To remand the order without considering its validity would be inconsistent with juvenile\u2019s appeal of the adjudication order. Accordingly, we properly consider juvenile\u2019s assignment of error with respect to the 10 August 2001 adjudication order.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.", "Leslie C. Rawls, for juvenile-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF DREMONDA EUGENE RIKARD, DOB 5/20/1987\nNo. COA02-1581\nNo. COA02-1628\n(Filed 4 November 2003)\n1. Juveniles\u2014 adjudication order \u2014 notice of appeal \u2014 amendment \u2014 disposition\u2014absence of jurisdiction\nTrial courts in which a juvenile was adjudicated delinquent and to which his case was transferred for disposition were divested of jurisdiction to amend the adjudication order or to proceed to disposition when no disposition had been entered within 60 days after entry of the adjudication order and the juvenile filed notice of appeal of the adjudication order pursuant to N.C.G.S. \u00a7 7B-2602.\n2. Juveniles\u2014 adjudication order \u2014 sufficiency of oral findings\nThe 10 August 2001 juvenile adjudication order is remanded for correction of the written order to include the required finding beyond a reasonable doubt that the acts alleged in the petition were true, which the court stated orally.\n3. Juveniles\u2014 adjudication order \u2014 motion to dismiss \u2014 sufficiency of evidence\nAlthough a juvenile contends the trial court erred in its adjudication finding the juvenile to be delinquent by failing to grant juvenile\u2019s motion to dismiss based on alleged insufficient evidence, this assignment of error is overruled because the juvenile did not renew his motion to dismiss after presenting evidence as required by N.C. R. App. P. 10(b)(3).\nAppeal by juvenile from orders entered 10 August 2001 by Judge Jonathan L. Jones in Catawba County District Court and 25 January 2002 by Judge Charlie E. Brown in Rowan County District Court. Heard in the Court of Appeals 18 September 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.\nLeslie C. Rawls, for juvenile-appellant." }, "file_name": "0150-01", "first_page_order": 180, "last_page_order": 185 }