{
  "id": 8378787,
  "name": "IN THE MATTER OF: T.B., Juvenile",
  "name_abbreviation": "In re T.B.",
  "decision_date": "2006-07-18",
  "docket_number": "No. COA05-521",
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          "parenthetical": "\"Level 2 is an intermediate disposition, primarily community based, while Level 3 carries a commitment to the Department.\""
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  "last_updated": "2023-07-14T17:18:34.747306+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges HUNTER and McCULLOUGH concur."
    ],
    "parties": [
      "IN THE MATTER OF: T.B., Juvenile"
    ],
    "opinions": [
      {
        "text": "GEER, Judge.\nT.B., a juvenile, appeals from a final disposition order committing him to the Department of Juvenile Justice for an indefinite term. We conclude that, under the circumstances of this case, the trial court was not statutorily authorized to order a disposition of commitment based on T.B.\u2019s probation violations. Accordingly, we reverse and remand for further proceedings.\nFacts\nT.B. was first adjudicated delinquent on 13 June 2003 based upon his admission of allegations of misdemeanor possession of stolen goods and assault inflicting serious injury. The trial court gave T.B. a Level 1 disposition of one-year supervised probation. Among other conditions, T.B.\u2019s probation required T.B. to \u201cobey [his] parents at all times,\u201d \u201cattend school regularly and maintain good behavior while there,\u201d \u201creport to [his] court counselor,\u201d and \u201ccooperate with therapy.\u201d\nOn 28 April 2004, the trial court held a hearing on a motion for review filed by the State, alleging that T.B. had violated his probation by not following the rules both at school and at home. T.B. admitted the allegations, and the court found him in violation of his probation. In an order filed 6 May 2004, the court elevated T.B.\u2019s disposition to a Level 2 and extended his probation for one year from 28 April 2004. Among the conditions added to his probation were: (1) T.B. was \u201cplaced on a stayed commitment to training school\u201d; (2) the court provided for 28 24-hour periods of secure custody to be used at the court counselor\u2019s discretion; (3) T.B. was to remain on intensive probation until released by the court counselor; and (4) T.B. was to have no unexcused absences, no tardies, and no school suspensions. The court also scheduled another hearing for 1 June 2004, at which the court counselor would submit a status report as to T.B.\u2019s progress. In the 28 April 2004 hearing, the court warned T.B. that if he failed to comply with the terms of his probation, \u201cwe got a cell for you with your name on it.\u201d\nAt the 1 June 2004 hearing, T.B.\u2019s case manager read a summary of T.B.\u2019s behavior into evidence, which stated that \u201c[T.B.] is currently out of control. [He] continues to break house rules by missing curfew, using alcohol and drugs and affiliate [sic] with gang members.\u201d The case manager also testified that \u201c[T.B.] has become more rebellious against his father and mother.\u201d T.B.\u2019s court counselor testified in a similar fashion and enumerated several of the ways in which T.B. was not complying with the 28 April 2004 order. The court entered an order on 1 June 2004 providing, without further findings of fact: \u201cBased on the (MFR) violation the juvenile was found to be in violation. He was admitted to Department of Juvenile Justice. Level 3 commitment disposition (per Judge O\u2019Neal).\u201d This \u201cfinding\u201d appears to refer to the \u201cMFR\u201d (or motion for review) that was adjudicated in April 2004 and the probation violations found at that time. The court thereafter ordered an indefinite term of commitment. T.B. timely appealed.\nDiscussion\nT.B. argues on appeal that the trial court was without authority to enter a Level 3 juvenile disposition of commitment to a youth development center. \u201c[C]hoosing between . . . appropriate dispositional levels is within the trial court\u2019s discretion.\u201d In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002). Accordingly, when a district court selects a disposition that is authorized by statute, this Court will not overturn its choice unless it \u201c \u2018is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Id. (quoting Chicora County Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347 N.C. 670, 500 S.E.2d 84 (1998)). We agree with T.B.\u2019s contention that the disposition imposed by the trial court in this case was not authorized by statute.\nFollowing T.B.\u2019s original delinquency adjudication, the trial court was authorized by N.C. Gen. Stat. \u00a7 7B-2508 (2005) to impose either a Level 1 or a Level 2 disposition based on his delinquency history level (\u201clow\u201d) and the class of his offense (\u201cserious\u201d). The court chose to impose a Level 1 disposition with one year of supervised probation.\nWhen the trial court concluded on 28 April 2004 that T.B. had violated his probation, it was then governed by N.C. Gen. Stat. \u00a7 7B-2510 (2005). Under that statute, \u201c[i]f the court, after notice and a hearing, finds by the greater weight of the evidence that the juvenile has violated the conditions of probation set by the court, the court may continue the original conditions of probation, modify the conditions of probation, or .. . order a new disposition at the next higher level.\u201d N.C. Gen. Stat. \u00a7 7B-2510(e) (emphasis added). Accordingly, the trial court was statutorily authorized to order a new disposition at Level 2, the next higher level, in the 6 May 2004 order. Of the additional conditions imposed in the 6 May 2004 order, T.B. argues only that the trial court\u2019s provision for \u201ca stayed commitment to training school\u201d was not authorized as a Level 2 disposition.\nAt the 28 April 2004 hearing, before ordering the stayed commitment, the trial court asked: \u201cHow many points has [T.B.] got at this point, including his probation, where we\u2019re at now?\u201d The State\u2019s attorney told the court that she thought T.B. had four points, to which the court responded: \u201cAll right. He\u2019s got enough for training school at this point. We got enough for a stayed commitment. I gotcha where I want you now.\u201d Later, the trial court stated: \u201cSo I know you\u2019re getting a stayed commitment today. You got enough points.\u201d The trial court apparently misapprehended the role of \u201cpoints.\u201d\nUnder the Juvenile Code, \u201cpoints\u201d are used to determine a juvenile\u2019s delinquency history level. See N.C. Gen. Stat. \u00a7 7B-2507 (2005) (\u201cThe delinquency history level for a delinquent juvenile is determined by calculating the sum of the points assigned to each of the juvenile\u2019s prior adjudications and to the juvenile\u2019s probation status ....\u201d). This history level is then used as part of the calculation for determining the juvenile\u2019s disposition level after an adjudication of delinquency; the trial court must also consider the seriousness of the present offenses in order to arrive at the available dispositional alternatives. N.C. Gen. Stat. \u00a7 7B-2508(f).\nThe pertinent question with respect to the probation violation was not how many \u201cpoints\u201d T.B. had, but rather what dispiositional alternatives were statutorily authorized for a Level 2 disposition. A trial court ordering a Level 2 disposition \u201cmay provide for . . . any of the dispositional alternatives contained in subdivisions (1) through (23) of G.S. 7B-2506 .. ..\u201d N.C. Gen. Stat. \u00a7 7B-2508(d). The State contends that N.C. Gen. Stat. \u00a7 7B-2506(19) (2005) authorized the stayed commitment. That subsection does permit a trial court to \u201c[s]uspend imposition of a more severe, statutorily permissible disposition with the provision that the juvenile meet certain conditions agreed to by the juvenile and specified in the dispositional order.\u201d The State does not, however, address the requirement that the more severe disposition be \u201cstatutorily permissible.\u201d\nOur case law and the pertinent statutes establish that commitment is not a statutorily permissible disposition at Level 2. Commitment is addressed by N.C. Gen. Stat. \u00a7 7B-2506(24) and, therefore, is not one of the statutorily permitted Level 2 dispositions authorized by N.C. Gen. Stat. \u00a7 7B-2508(d) (noting Level 2 dispositions are set forth in N.C. Gen. Stat. \u00a7 7B-2506(1) through (23)). This Court has, consistent with the statutory provisions, observed: \u201cA Level 2 dispositional limit \u2014 or intermediate disposition \u2014 does not provide for commitment of the juvenile to training school as one of the \u2018intermediate\u2019 dispositional alternatives.\u201d In re Allison, 143 N.C. App. 586, 597, 547 S.E.2d 169, 176 (2001). See also Robinson, 151 N.C. App. at 737, 567 S.E.2d at 229 (\u201cLevel 2 is an intermediate disposition, primarily community based, while Level 3 carries a commitment to the Department.\u201d); N.C. Gen. Stat. \u00a7 7B-2508(e) (providing that commitment is a Level 3 disposition). Since commitment is not a permissible Level 2 disposition, the trial court could not, under N.C. Gen. Stat. \u00a7 7B-2506(19), impose a stayed commitment in its 6 May 2004 order.\nFurther, the validity of the indefinite commitment ordered on 1 June 2004 hinges on whether the 6 May 2004 stayed commitment was proper. The 1 June 2004 order, as well as the transcript of the 1 June 2004 hearing, indicate that the order of indefinite commitment resulted from the trial court vacating its earlier stay of the commitment imposed in the 6 May order. Indeed, in its 1 June 2004 order, the trial court did not make any findings of further probation violations or enter any other findings to support a Level 3 disposition of commitment. See N.C. Gen. Stat. \u00a7 7B-2512 (2005) (requiring that the dis-positional order contain appropriate findings of fact to support its conclusions of law). Instead, the court stated only that it was ordering commitment based on the probation violations admitted in response to the motion for review adjudicated in April 2004.\nBecause commitment is not an \u201callowable [Level 2] disposition[],\u201d N.C. Gen. Stat. \u00a7 7B-2506(19), the trial court was not authorized to impose commitment, stayed or otherwise, in the 6 May 2004 order. Since the 6 May 2004 probation violation order was the sole basis specified for the 1 June 2004 indefinite commitment, we must reverse and remand for imposition of a statutorily authorized Level 2 disposition.\nReversed and remanded.\nJudges HUNTER and McCULLOUGH concur.\n. Since T.B. had no prior adjudications of delinquency, these \u201cpoints\u201d arose solely from the adjudication in this case and the probation violation.\n. We note that, with respect to Level 2 dispositions, the trial court \u201cmay impose a Level 3 disposition if the juvenile has previously received a Level 3 disposition in a prior juvenile action.\u201d N.C. Gen. Stat. \u00a7 7B-2508(d). T.B., however, does not fall into this category.",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper., by Special Deputy Attorney General Gail E. Dawson, for the State.",
      "Appellate Defender Staples Hughes for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: T.B., Juvenile\nNo. COA05-521\n(Filed 18 July 2006)\nJuveniles\u2014 probation violation \u2014 commitment not permissible disposition at Level 2\nThe trial court erred by committing a juvenile to a youth development center for an indefinite term on 1 June 2004 based on his probation violations in a 6 May 2004 order, because: (1) the pertinent question with respect to the probation violation was not how many points the juvenile had, but rather what dispositional alternatives were statutorily authorized for a Level 2 disposition; and (2) our case law and the pertinent statutes establish that commitment is not a statutorily permissible disposition at Level 2 under N.C.G.S. \u00a7 7B-2506(1) through (23) when it is addressed by N.C.G.S. \u00a7 7B-2506(24).\nAppeal by juvenile from order entered 1 June 2004 by Judge Elaine M. O\u2019Neal in Durham County District Court. Heard in the Court of Appeals 7 December 2005.\nAttorney General Roy Cooper., by Special Deputy Attorney General Gail E. Dawson, for the State.\nAppellate Defender Staples Hughes for defendant-appellant."
  },
  "file_name": "0542-01",
  "first_page_order": 574,
  "last_page_order": 578
}
